AN APPLICATION TO SET ASIDE A WITHOUT NOTICE ORDER IS NOT SUBJECT TO “TIBBLES” CRITERIA: SOMETIMES DENTON DOES NOT APPLY – OR SHOULD NOT BE APPLIED

There is a short passage in the judgment of Mr Justice Pepperall in Berhad v Frazer-Nash Research Ltd & Anor [2018] EWHC 2970 (QB) in relation to late service of evidence before an interlocutory hearing. The judge held that the Denton principles did not apply, and permission to serve evidence late should be granted in any event.

THE CASE

The respondent to an action was seeking an order setting aside the registration of court orders made in Malaya.

THE APPROACH TO A HEARING TO SET ASIDE REGISTRATION

The initial order was made without notice to the respondent.  The judge rejected the submission that the respondent’s application was subject to the restrictive “Tibbles” criteria.

THE PROPER APPROACH TO THIS HEARING

1. 1. Mr Samuel submits that the court should not approach this application to set aside as a complete re-hearing of the application for registration as it might where the initial order had been made simply upon the papers. Here, he observes, the order was made after a day’s argument and is explained in a carefully reasoned judgment. Mr Samuel therefore argues that while the court should consider both the new facts and new arguments (whether based on old or new facts) presented by the Respondents, it should accord some deference to Judge Wood’s reasoning.

   2. In support of his submissions, Mr Samuel referred me to Tibbles (supra), especially at [28]-[43]. Tibbles concerned an application under r.3.1(7) of the Civil Procedure Rules 1998 for an order varying or revoking the court’s earlier order made at an inter partes hearing. The judgment of Rix LJ provides important guidance as to the limits of that jurisdiction and the circumstances in which the applicant should instead pursue an appeal rather than seeking a “second bite of the cherry” before a judge sitting at the same level. The case was not therefore concerned with r.23.10, which provides:

“A person who was not served with a copy of the application notice before an order was made under rule 23.9, may apply to have the order set aside or varied.”

1. 1. Indeed, the authorities reviewed by Rix LJ all dealt with applications to vary or revoke orders made at inter partes hearings. They were properly described as “second bite” cases. While the position under r.23.10 was not addressed, Rix LJ cited at [28] a passage from the judgment of Patten J (as he then was) in Lloyds Investment (Scandinavia) Limited v. Ager-Hanssen [2003] EWHC 1740 (Ch) that briefly alluded to cases of non-disclosure on applications for an injunction as an example of where the court had been misled. As Mr Samuel observed, such situation typically arises where an injunction is obtained at a without notice hearing. Nevertheless, Patten J was expressly considering the jurisdiction under r.3.1(7) and his observation that it is not open to a party “to reargue [the] application by relying on submissions and evidence which were available to him at the time of the earlier hearing, but which, for whatever reason, he or his legal representatives chose not to deploy” is not apposite to an application under r.23.10.

   2. In my judgment, the principles enunciated in Tibbles are not engaged in applications under r.23.10, or indeed under the bespoke provision to like effect in r.74.7. The hearing before me was the first opportunity for the Respondents to present their evidence and to make their arguments and accordingly I will consider such evidence and arguments without restriction. Having done so, and if there is no absolute bar to registration under s.9(2), I consider that the discretion at the heart of s.9(1) is for me to exercise afresh.

LATE SERVICE OF EVIDENCE

The judge also rejected the argument that the respondent should not be allowed to rely on evidence served shortly before the hearing.  The late service of evidence in interlocutory proceedings was not subject to specific sanctions and therefore the Denton principles did not need to be considered.

THE EVIDENCE

1. 1. The Applicant filed witness statements from its English lawyers, Emma Jane Barnfield and Daniel Banks, in support of its application before Judge Wood QC. The Respondents filed a statement dated 26 June 2018 from their Group Director of Operations, William Tet Hin Chia, in support of their application to set aside registration. Among other matters, Mr Chia dealt with the Respondents’ intention to appeal the decision of the Malaysian Court of Appeal to the Federal Court. He said, at paragraphs 18-19 of his June statement:

“18. Given the concerns regarding limitation and the lack of written reason from the Court of Appeal in Malaysia, the Companies have felt it is necessary to institute an appeal to the Federal Court. I exhibit hereto a letter from the instructed lawyers for the Companies, Liza Khan Chambers of Kuala Lumpur. That letter addresses the two judgments of 2008, but the Companies have also given instructions to appeal the Court of Appeal decision of 2017.

19. I anticipate issuing within weeks and that the appeal will be live before any hearing at the High Court of England and Wales occurs and thus I ask the court to consider that section 9(2)(e) of the Administration of Justice Act 1920 has been met.”

1. This evidence was answered by a statement from the Applicant’s Malaysian lawyer, Azlan bin Sulaiman, dated 12 July 2018. There the evidence rested until the week of the hearing before me. By a further statement dated 23 October 2018, Mr Chia confirmed that appeal papers had been lodged with the Federal Court at 2.17pm local time on Monday 22 October 2018. The statement exhibited the Notice of Motion lodged with the Federal Court in both Malay and English. The fresh evidence was sent to the Applicant’s solicitors by e-mail at 09:57 on Wednesday 24 October 2018, just 26 hours before this application was called on for hearing.

2. Mr Samuel objects to the admissibility of Mr Chia’s new statement. He observes that it was filed and served less than two clear days before the hearing in breach of PD 23A, paras 6.11 & 6.13. Accordingly, he argues that the Respondents need to seek relief from sanctions pursuant to r.3.9 of the Civil Procedure Rules 1998 thereby engaging the well-known jurisprudence in Denton v. TH White Ltd [2014] EWCA Civ 906; [2014] 1 W.L.R. 3296.

3. In my judgment, r.3.9 is not engaged since the Practice Direction does not impose a sanction for non-compliance with paras 6.11 & 6.13. There is, however, another simple reason to allow the Respondents to rely on Mr Chia’s latest statement without considering the caselaw under r.3.9. This is not a case in which the Respondents have filed very late evidence in order to deal with developments that happened some weeks or months ago. This is updating evidence that could only be filed once the new event, namely the lodging of the appeal papers in Kuala Lumpur, had happened. One inevitably raises a sceptical eyebrow that the timing appears to have been driven by the need to persuade an English judge that there was a pending appeal in Malaysia, but that is not a reason for shutting out evidence of this fresh development. Furthermore, there has been no suggestion by Mr Samuel that the Applicant is unable to deal with the late evidence or that it needs an adjournment in order to do so. Accordingly, the Respondents may rely on the late statement.