Another win in the Commercial Court for Debenhams Ottaway – Too little too latest

Debenhams Ottaway has won in another hearing in the Commercial Court, on the ongoing matter of Invest Bank v El-Husseini.

During a four-week trial at the Rolls Building, the court heard the claimant bank’s application for relief from sanctions, which was dismissed with costs awarded to our clients.

The application concerned a divorce agreement disclosed by one of our clients, which stated on the face of the document to have been executed on a particular date. A notice to prove this document was served by the bank two weeks after the deadline, as prescribed in CPR 32.19 as the ‘latest date for serving witness statements’ (or within seven days of disclosure if this is later).

Although it was common ground that the original deadline was 1 March 2024, Bryan J at the PTR gave permission for supplemental witness statement to be served by 17 June 2024. The bank then contended that this date then became the new ‘latest date’, and so relief from sanctions was not required.

This proposition was rejected by Calver J, who said that although the CPR here is ‘poorly worded’… it simply means “by the latest date for serving the primary witness statements”, not supplemental witness statements’. Calver J noted that if this were not the case a party would be left unsure of what this deadline is as supplemental witness statement could potentially be ordered to be served at any time up until shortly before trial, which may well be too late to gather and serve evidence in response.

Relief from sanctions was then refused for a number of reasons, the chief among them being his agreement with our counsel, Niranjan Venkatesan, that such a grant would serve no useful purpose. Challenging the date of execution of the divorce agreement would amount to an allegation of forgery in law, which had not been properly pleaded.

The trial, in which the bank is suing eight defendants under section 423 if the Insolvency Act 1986, continues…