Routledge & Anor v Brazzo & Ors (2011)
Although details of unfit conduct in support of an undertaking given in director's disqualification proceedings were not admissions of guilt, where that information was relevant to other proceedings against the director it was not improper for the document to be included in the trial bundle and for the claimant to cross-examine the director on those documents.
The appellants (R) appealed against the refusal by a master of their application for certain documents to be excluded from the trial bundle in an action by the respondents (B). R had been directors of a company that had sold classic cars on behalf of vendors. Some of the vendors, including B, had not received the sale proceeds of their cars. The company went into liquidation, and the liquidators took proceedings against R and the company. Directors' disqualification proceedings against R were settled by undertakings, which had annexed to them a schedule of the unfit conduct relied on that R agreed not to dispute. B then began the instant proceedings claiming that R had dishonestly assisted the company in paying the proceeds of sale elsewhere in breach of trust, or knowingly received the proceeds in breach of trust. The master granted R's application to remove a sentence in the reply to their defence that referred to the statements in the schedule as admissions of guilt, but refused their application under CPR r.32.1(2) to order removal of all documents from the trial bundle that mentioned the contents of the schedule. R argued that as the schedule was not an admission it was not admissible in the instant proceedings, and even if it were admissible it was not relevant to the pleaded allegations, or that the prejudice of admission would outweigh the probative value.
The statements in the schedule were not admissions, but a document on which cross-examination was conducted was not one that necessarily proved anything. At the lowest it would be artificial to say that a claimant might never cross-examine and put before the defendant in evidence what was summarised in the matters of unfitness in the schedule, Blackspur Group Plc (No3), Re (2001) EWCA Civ 1595, (2004) BCC 839 considered. The statements did mirror to a large extent the allegations in the particulars of claim and were not irrelevant to the instant claim. The power under CPR r.33.1(2) was better exercised by the trial judge.
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17 Jun 2011
Robert Englehart QC
Siward Atkins QC