Cadogan Petroleum PLC v Tolley (October 2009)
An application was granted to use part of the transcript of a pre-trial cross-examination of a defendant, which was subject to an undertaking as to its use, in an action for breach of contract, breach of trust and conspiracy. The use of the material was, however, restricted if the defendant chose not to serve any evidence at trial, as it would then be inappropriate for the claimants to adduce his answers in cross-examination as part of their primary case.
The applicants (C) applied to use the transcript of a cross-examination of the first respondent (T) in an action for breach of contract, breach of trust and conspiracy. An order had been granted for the cross-examination of T. T was cross-examined about statements he had made concerning the whereabouts and existence of various assets, in order to evaluate whether they could be frozen for the purposes of the proceedings. The order was subject to an undertaking by C that they would not use the answers given by T for any criminal or committal proceedings or for the trial of the action without permission of the court. The instant application sought permission to release C from the undertakings and to use the remainder of the transcript at trial, as evidence of the complex history of business dealings and movement of money between T and his companies and between the thirteenth respondent and his companies.
The discretionary powers of the court were exercisable so as to ensure that when appropriate, cross-examination evidence could be used at trial, Phillips v Symes (2003) EWCA Civ 1769, (2003) 147 SJLB 1431 and Dadourian Group International Inc v Simms (2006) EWCA Civ 1745, (2007) 1 WLR 2967 applied. When exercising the discretion the overriding objective had to be considered to ensure that all proceedings were dealt with in a just and expeditious manner. There was no principle that an undertaking restricting the use of cross-examination material could only be changed in exceptional circumstances. (2) In the instant case, the cross-examination was relevant partially to establishing any potential claim to trace assets; as C sought tracing orders, that material was plainly relevant. Second, C would in effect have been able to cross-examine T to ask the same questions. Although it was theoretically possible that T would not give evidence, that was a remote possibility given the nature of the allegations made against him and the material which had already been deployed by C. Further, assuming that C could put the same questions in cross-examination, it would be wrong for any inconsistency in the answers to be withheld from the trial judge. Inconsistent answers given on oath were clearly relevant material which a trial judge would need to establish the credibility of a witness at trial. It was clear, however, that C should not be able to deploy the material in the unlikely event that T chose not to serve any evidence. In that regard only, it would be inappropriate to allow the material in question to be used at trial. An order would therefore be made that C was entitled to deploy the evidence given in cross-examination if T elected to serve a witness statement in the action. If T did not serve any evidence, he was taking the risk of being unable to defend the case. However, if he elected to take such a risk, it would be inappropriate for C to be able to put in his answers as part of their primary case. There was nothing exceptional in the undertakings given by C to inhibit the court from releasing them. C's application was granted in substance, but restricted depending on whether or not T served evidence.
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