Category: Uncategorized

Introduction
My articles for this blog are hopefully of interest to the readers but sometimes may also serve, to be honest, as a reminder to myself of a recent case and prompt to carefully read the judgment. Such is the case with the 5 July 2023 judgment in Yao Bekoe v London Borough of Islington [2023] EWHC 1668 (KB).

This was a claim for misuse of private information and later breach of rights under the (pre-Brexit) General Data Protection Regulation (“GDPR”). The latter issue concerned a data subject access request (“DSAR”) sent by Mr Bekoe, and especially delays in providing a response .

The misuse of private information claim arose out of possession proceedings in respect of a property owned by Mr Bekoe’s neighbour (Mrs Sobesto, now deceased). The London Borough of Islington (“the Council”) had previously been appointed deputy for her after Mrs Sobesto had moved into a care home, and had concerns about Mr Bekoe letting out Mrs Sobesto’s property.

Mr Bekoe said that “he had an informal arrangement with Mrs Sobesto and her family whereby he managed and let out flats in the Property on her behalf with the income being intended to help pay for her care”.

Before looking at how the court dealt with the claims, its treatment of the witness evidence, actual or missing, has an importance and relevance beyond the 4 corners of the case.

Witness evidence

Neither of the Council’s witnesses had any personal knowledge of the facts underlying the two claims, and the legal file related to the earlier possession claim had likely been destroyed.

The Judgment of DHCJ Susie Alegre includes a helpful section on evidence and inferences (see my earlier blog on this issue from September 2021):

“19.The general rule concerning the evidence of witnesses is set out at CPR r.32.2. 

“32.2—(1) The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved—(a)at trial, by their oral evidence given in public; and (b)at any other hearing, by their evidence in writing.” 

20.The commentary on the rule in White Book 2023, 32.2.1 at pg. 1017 says:

“Traditionally, the law applicable in England and Wales has placed greatest weight on evidence given by witnesses in open court on oath or affirmation under examination by the parties. Rule 32.2(1)(a) restates the general principle in relation to the most important part of the civil process, the trial. The rule applies only to evidence as to matters of fact.”

21. In Active Media Services Inc v Burmester Duncker & Joly GmbH & Co KG [2021] EWHC 232 (Comm) (Calver J), at [299]-[311], the Court summarised the applicable principles regarding a court’s ability to draw adverse inferences from the absence of evidence before the court. In relation to the claimant company’s failure to call relevant witnesses Calver J referred to the observations of Brooke LJ in Wisniewski v Central Manchester Health Authority [1998] P.I.Q.R P324, including that “(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.”

22. In relation to the destruction of evidence, Calver J referred to the observations of HHJ Simon Brown QC in Earles v Barclays Bank [2009] EWHC 2500, at [31]: “In cases where there is a deliberate void of evidence, such negativity can be used as a weapon in adversarial litigation to fill the evidential gap and so establish a positive case.”

23. In summarising the application of the principles in Active Media Services Inc at [311], Calver J held:

“that the court is entitled in such a case, depending upon the particular facts, to draw adverse inferences as to (i) what the destroyed documents are likely to have shown on the issue on question, and (ii) the evidence that the witnesses are likely to have given on the issue in question but which was withheld, without the need for some other supporting evidence being adduced by the innocent party on that issue.”

24. In Vardy v Rooney [2022] EWHC 2017 (QB); [2023] E.M.L.R. 1, the Court held that it could draw adverse inferences on the basis that the wrongdoer has “parted with relevant evidence”, under the principle in Armorie v Delamirie.”

In Bekoe v Islington the DHCJ found (emphasis added):

“52.There is no dispute that the Defendant accessed the private information sometime in July 2015 and shared it, both within the organisation and with the County Court in the Possession Claim. Mr. Cunliffe repeatedly put forward the argument that the access was based on LBI’s duty to Mrs Sobesto and was an enquiry under Section 42 of the Care Act 2014, but no evidence was adduced by the Defendant to back up these submissions. Nor was any evidence adduced to back up submissions related to contact with the police beyond the reporting in November 2014 which resulted in no action by Islington Police.

53.The Defendant said that the officers involved in the Possession Claim and in earlier engagements with Mr Bekoe in relation to the Property and the Court of Protection proceedings have all left the Council. But in their absence, no evidence was brought to show how an enquiry under Section 42 of the Care Act would normally be carried out; and there was no evidence as to what actually happened on this occasion. Indeed, the only evidence of contact with the police was reference to the report in November 2014 which resulted in Islington Police taking no action. In light of the observations of Brooke LJ in Wisniewski v Central Manchester Health Authority [1998] P.I.Q.R P324, I conclude from the absence of witnesses from the relevant departments who might have material evidence on the process for making an enquiry under Section 42 of the Care Act, that there was no evidence to support this defence.”

Misuse of private information

Returning to the claims, misuse of private information is a tort under common law. Information is private for the purposes of this tort if the person in question has a reasonable expectation of privacy in respect of it. If so, the question is whether that expectation is outweighed by a countervailing interest: ZXC v Bloomberg LP [2022] UKSC 5, [2022] AC 1158, [43]-[62]26.

The private information in issue here included (a) the account number and sort code of several of Mr Bekoe’s bank accounts, and (b) mortgage accounts and mortgage balances providing a snapshot of his general financial affairs at the time of the possession proceedings.

That private information had been provided by the Council to the County Court in the possession proceedings without, Mr Bekoe said, any legal basis.

Although there was a disclosure order in the possession proceedings for some of the same documents, the court found that “the financial information accessed by LBI went far beyond that which would have been necessary to demonstrate payments made or received in relation to the Property”, and that his private information had been accessed by the Council before the August 2015 disclosure order.

Ultimately therefore, the DHCJ determined at para. 56 of the judgment “that the Defendant did misuse private information belonging to Mr Bekoe by accessing details relating to a collection of bank accounts and mortgage accounts associated with Mr Bekoe (and others) in July 2015 without lawful authority”.

GDPR

As for the GDPR claim, there was little real argument that this was made out by reason of the delays, the likelihood of missing information and breaches of security of personal data – articles 5, 12 and 15:

Article 5(1) provides:

“Personal data shall be:(a)

processed lawfully, fairly and in a transparent manner in relation to the data subject (‘lawfulness, fairness and transparency’);

….(f)

processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures (‘integrity and confidentiality’).”

Article 12(3) provides

“The controller shall provide information on action taken on a request under Articles 15 to 22 to the data subject without undue delay and in any event within one month of receipt of the request.”31.

Article 15(1) provides: 

“The data subject shall have the right to obtain from the controller confirmation as to whether or not personal data concerning him or her are being processed, and, where that is the case, access to the personal data and the following information:(a)

the purposes of the processing;(b)

the categories of personal data concerned;

…”

Article 15(3) provides: 

“The controller shall provide a copy of the personal data undergoing processing. For any further copies requested by the data subject, the controller may charge a reasonable fee based on administrative costs. Where the data subject makes the request by electronic means, and unless otherwise requested by the data subject, the information shall be provided in a commonly used electronic form.”

Quantum

Mr Beko was awarded £6000 for the misuse of private information and breaches of the GDPR by the Council. This included aggravated damages because of the (para. 69 of the Judgment):

“Repeated failure to disclose key information, disclosure at the final hour, two working days before the trial, and the absence of any clear evidence to support or substantiate Defence submissions relating to alleged fraud have clearly aggravated the distress caused to the Claimant.”

Conclusion

It will be noted that in the misuse of private information case, the DHCJ held at para. 54:

“The argument that Mr Bekoe’s privacy rights under Article 8 ECHR must be balanced against the late Mrs Sobesto’s property rights under Article 1 Protocol 1 ECHR must also fail in the absence of evidence for a clear legal basis for accessing the information.”

People misusing Council properties are being offered a one-off opportunity to #DoTheRightThing & return keys without criminal proceedings during February. The campaign is also encouraging anyone who suspects housing fraud to email fraud@scambs.gov.uk https://t.co/tY8ioasOKg

— South Cambridgeshire (@SouthCambs) January 17, 2023

The issue
There has rightly been much publicity recently in the housing, legal and indeed wider press about the recent Norwich Pharmacal order obtained by the Royal Borough of Kensington & Chelsea (“RBKC”). As RBKC’s own press release explained:

“In a major victory against social housing tenancy fraud, Kensington and Chelsea Council has worked with Airbnb to unlock critical information that can be used in future legal action or criminal proceedings against alleged fraudsters.  

The collaboration will see Airbnb Payments UK share payments data with the Council for two estates in North Kensington to help crack down on illegal short-term lets.

The data sharing, which will take place under a court order due to GDPR requirements, will provide the Council with payment evidence of social housing properties identified as being potentially listed as holiday and short-term lets. This will allow the Council to take enforcement steps having obtained the evidence.

The order was agreed by Airbnb and Kensington and Chelsea as part of the Council’s efforts to crackdown on the number of illegally sublet Council-owned properties, as the Council aims to free up homes for individuals and families on the housing waiting list.” 

Previous articles
I wrote about the issue of short-term lets and sub-letting 3 years ago on this blog.

What are Norwich Pharmacal orders?
In EUI Ltd v UK Vodaphone [2021] EWCA Civ 1771 Lord Justice Baker explained Norwich Pharmacal orders and when they can be applied for:

“1. This is an appeal against a judge’s refusal to order disclosure of information under the principle in Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133. 

2. The principle was summarised by Lord Reid at page 173:

“if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.”

3. In Mitsui & Co Ld. v Nexen Petroleum UK Ltd [2005] EWHC 625 (Ch), [2005] 2 All ER 511, Lightman J at paragraph 21 summarised the components of the principle in these terms:

“The three conditions to be satisfied for the court to exercise the power to order Norwich Pharmacal relief are:

i) a wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer;

ii) there must be the need for an order to enable action to be brought against the ultimate wrongdoer; and

iii) the person against whom the order is sought must: (a) be mixed up in so as to have facilitated the wrongdoing; and (b) be able or likely to be able to provide the information necessary to enable the ultimate wrongdoer to be sued.”

4. The power to order disclosure in such circumstances does not extend, however, to “mere witnesses”. This limit on the jurisdiction was recognised by Lord Reid in Norwich Pharmacal at page 174:

“But that does not mean, as the appellants contend, that discovery will be ordered against anyone who can give information as to the identity of a wrongdoer. There is absolutely no authority for that. A person injured in a road accident might know that a bystander had taken the number of the car which ran him down and have no other means of tracing the driver. Or a person might know that a particular person is in possession of a libellous letter which he has good reason to believe defames him but the author of which he cannot discover. I am satisfied that it would not be proper in either case to order discovery in order that the person who has suffered damage might be able to find and sue the wrongdoer. Neither authority, principle nor public policy would justify that.”

5. The crucial question, therefore, is whether the defendant to the claim for information is more than a “mere witness” or “bystander”. In Various Claimants v News Group Newspapers Ltd (No.2) [2013] EWHC 2119 (Ch), [2014] Ch 400, Mann J observed (at paragraph 52) that participation or facilitation was not the sole test. He continued:

“It is true that the traditional formulation of the test is in such terms, but that is because those are the usual circumstances in which someone becomes something beyond a mere witness. On the facts of the cases where orders were made, the respondent was usually in that position. In my view the answer to the question lies in recognising that what the cases are doing is contrasting two things – the mere witness on the one hand, and the person who is not a mere witness on the other. On the cases the latter class is generally described in terms of participation/facilitation, as though that were the opposite of being a mere witness. But the real analysis lies in appreciating that the courts are holding not that those factors are indeed the other side of a dichotomy, but that those factors prevent the respondent from being a mere witness. Once that is recognised then it becomes relevant to consider whether there are other facts, short of participation/facilitation, which could prevent a person from being a mere witness.”

The question (paragraph 54) was therefore whether the defendant

“is a mere witness (or metaphorical bystander) or whether its engagement with the wrong is such as to make it more than a mere witness and therefore susceptible to the court’s jurisdiction to order Norwich Pharmacal disclosure.”

6. The distinction can be illustrated by the decision in Norwich Pharmacal itself. An order for disclosure was made against the Commissioners of Customs and Excise to obtain the names and addresses of importers of a chemical compound which, it was thought, was being brought into this country in breach of patents. Lord Reid explained why an order for disclosure was justified in law in these terms (at page 174):

“From the moment when they enter the port until the time when the consignee obtains clearance and removes the goods, they are under the control of the Customs in the sense that the Customs authorities can prevent their movement or specify the places where they are to be put, and in the event of their having any suspicions they have full powers to examine or test the goods. When they are satis?ed and the appropriate duty has been paid the consignee or his agent is authorised to remove the goods. No doubt the respondents are never in possession of the goods, but they do have considerable control of them during the period from entry into the port until removal by the consignee. And the goods cannot get into the hands of the consignee until the respondents have taken a number of steps and have released them.”

Similarly in  Various Claimants v News Group Newspapers Ltd (No.2), in which the claimants were seeking to bring proceedings against the proprietor of a national newspaper for phone hacking, an order was made against the Metropolitan Police for disclosure of information relating to the hacking which they had acquired in the course of an investigation.” (Emphasis added in bold)

Further guidance

The solicitors advising RBKC, Pinsent Masons, have not only explained their role in this important case but have also helpfully provided an excellent and comprehensive updated guide on obtaining Norwich Pharmacal orders.

I wrote recently about the position of a judgment which is later discovered to have been procured by fraud. Mr Justice Leech had cause to consider such a potential (but not, ultimately, actual) case in Tinkler v Esken Ltd [2022] EWHC 1375 (Ch) (and thank you to Arun Chauhan for alerting me to this judgment in one of his posts on LinkedIn):

“5. Mr Tinkler now invokes the court’s jurisdiction to set aside the Judgment for fraud on the grounds that individual witnesses (whose conduct can be attributed to SGL) deliberately failed to disclose documents (or destroyed them) and that they gave false evidence at the Trial.”

Paragraphs 11 to 35 of the judgment are especially interesting in re-affirming the correct approach:

“11. It was common ground that one party is entitled to have a judgment set aside for fraud if three limbs or conditions are satisfied: first, the successful party (or someone for whom it must take responsibility) committed conscious and deliberate dishonesty (“Limb 1“); secondly, the dishonest conduct was material to the original decision (“Limb 2“); and, thirdly, there was new evidence before the Court (which was either not given or not disclosed in the earlier proceedings) (“Limb 3“). The principal issues between the parties were the test for materiality under the Limb 2 and the way in which the Court should approach new evidence deployed under Limb 3.”

The analysis that followed on each of these limbs in this section of a long judgment is worth a read.

The Court also reminded itself of some particular features when dealing with allegations of fraud:

“36. Mr Leiper also made a number of general points about the trial of fraud claims. He reminded me that although the standard of proof was the civil standard, the Court should take account of the fact that fraud is inherently improbable. In Bank St Petersburg PJSC v Arkhangelsky [2020] 4 WLR 5 Males LJ summarised the approach which the Court should take at [117]:

“In general it is legitimate and conventional, and a fair starting point, that fraud and dishonesty are inherently improbable, such that cogent evidence is required for their proof. But that is because, other things being equal, people do not usually act dishonestly, and it can be no more than a starting point. Ultimately, the only question is whether it has been proved that the occurrence of the fact in issue, in this case dishonesty in the realisation of the assets, was more probable than not.”

37. Mr Leiper also reminded me that proof of fraud requires cogent evidence which must be commensurate with the seriousness of the conduct: see JSC BTA Bank v Ablyazov [2013] EWHC 510 (Comm) at [37] (Teare J). He submitted that where the Court was being invited to draw an inference of dishonesty from primary facts the Court must be satisfied that “an inference of dishonesty is more likely than one of innocence or negligence”: see JSC Bank of Moscow v Kekhman [2015] EWHC 3073 (Comm) (Flaux J). In the present case, Mr Tinkler alleges both perjury and the deliberate destruction and non-disclosure of documents. I accept that cogent evidence is required before those allegations can be found to be proved.”

The claim to set aside the judgement for fraud was ultimately dismissed.

i wrote about the exclusion of all or part of a witness statement in an earlier blog in August 2018. Earlier today (21 April 2022) Mrs Justice Steyn DBE handed down judgment on a series of pre-trial applications in Rebekah Vardy v Coleen Rooney [2022] EWHC 946 (QB).

Those applications included one each by the claimant and defendant seeking to strike out parts of each other’s statement. The result of these applications is unimportant for the purposes of this blog, and I’d rather highlight and emphasise the principles and law applied.

The judge began by setting out the relevant parts of the CPR:

“93. CPR 32.1 provides, so far as material:
“The court may control the evidence by giving directions as to—
(a) the issues on which it requires evidence;
(b) the nature of the evidence which it requires to decide those issues; and
(c) the way in which the evidence is to be placed before the court.
(2) The court may use its power under this rule to exclude evidence that would otherwise be admissible.”

94. CPR 32.4(1) provides:

“A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed
to give orally.””

She then went on to consider paragraph 10.60 of the Queen’s Bench Guide 2022:

“1. A witness statement must contain the truth, the whole truth and nothing but the truth on the issues it covers;

2. Those issues should consist only of the issues on which the party serving the witness statement wishes that witness to give evidence in chief and should not include commentary on the trial bundle or other matters which may arise during the trial or may have arisen during the proceedings;

3. A witness statement should be as concise as the circumstances allow; inadmissible or irrelevant material should not be included. An application may be made by an opposing party to strike out inadmissible or irrelevant material. If a party does object to the contents of a witness statement, they should notify the other party of their objection within 28 days after service of the statement and the parties should seek to resolve the matter. Otherwise an application should be made to the court for direction; …” (Emphasis added.)”

That was then followed, from paragraphs 96 to 99 of the Judgment, by the all important analysis of the relevant case-law which I think it worth setting out in the words of the Judge:

(1) As Sedley LJ observed in William v Wandsworth LBC [2006] EWCA Civ 535 at [80], “witness statements are a proper vehicle for relevant and admissible evidence going to the issue before the court, and for nothing else. Argument is for advocates. Innuendo has no place at all.”

(2) In JD Wetherspoon plc v Harris (Practice Note) [2013] 1 WLR 3296 Sir Terence Etherton C heard, amongst other matters, an application to strike out the majority of a witness statement made by Mr Goldberger on behalf of the second to fourth defendants. He held:
“33. The vast majority of Mr Goldberger’s witness statement contains a recitation of facts based on the documents, commentary on those documents, argument, submissions and expressions of opinion, particularly on aspects of the commercial property market. In all those respects Mr Goldberger’s witness statement is an abuse. The abusive parts should be struck out.
…

39. Mr Goldberger would not be allowed at trial to give oral evidence which merely recites the relevant events, of which he does not have direct knowledge, by reference to documents he has read. Nor would he be permitted at trial to advance arguments and make submissions which might be expected of an advocate rather than a witness of fact. These points are made clear in paragraph 7 of Appendix 9 to the Chancery Guide 7th ed (2013), which is as follows:
“A witness statement should simply cover those issues, but only those issues, on which the party serving the statement wishes that witness to give evidence in chief. Thus it is not, for example, the function of a witness statement to provide a commentary on the documents in the trial bundle, nor to set out quotations from such documents, nor to engage in matters of argument. Witness statements should not deal with other matters merely because they may arise in the course of the trial.”
…
41 I recognise, of course, that these rules as to witness statements and their contents are not rigid statutes. It is conceivable that in particular circumstances they may properly be relaxed in order to achieve the overriding objective in CPR r 1 of dealing with cases justly. I can see no good reason, however, why they should not apply to Mr Goldberger’s witness statement in the present proceedings.” (Emphasis added.)

(3) In Aven v Orbis [2020] EWHC 474 (QB) Warby J observed at [17] that the additional points made in the passage from the Chancery Guide cited by the Chancellor in JD Wetherspoon at [39], that it is not the function of a witness statement to set out quotations from documents in the trial bundle nor to engage in matters of argument, are not specific to the Chancery Division. At [13], Warby J observed that the Chancellor, in JD Wetherspoon
“evidently accepted the submission for the claimant, that the claimant would be placed in difficulty by such a statement because it would be difficult for counsel to decide how much of, and precisely which parts of, the witness statement should be the subject of cross-examination. I would respectfully accept and adopt that point. I would add that a proper separation between evidence and argument, fact and opinion, is important for other participants in or observers of the judicial process. The task of the Judge is complicated if these distinct matters are confused or intertwined, in a witness statement. Muddling up these separate elements of the process will also tend to make proceedings harder for observers to follow, and for reporters to explain. For all these reasons, it is important that documents presented to the Court should focus on the functions they are meant to perform, and not stray into other domains.”

(4) In Wilkinson v West Coast Capital [2005] EWHC 1606 (Ch) Mann J considered an application, at a pre-trial review, to strike out paragraphs in witness statements on the grounds of obvious irrelevance and/or disproportionality. He observed at [5]:
“… However, desirable though the power to control evidence obviously is, particular care must in my view be taken when it is sought to exercise the power before a trial. It is noteworthy that the two cases which I have referred to above were both cases in which the issues as to evidence arose during the course of trials. By the time that the issue arises in that context, the judge is likely to have a much fuller overall picture of the issues in the case and of the evidence which is going to be adduced in support of them.

In a large number of cases, he or she is likely to be in a better position to make judgments which turn on the real value of the line of evidence in question and its proportionality, and in very many cases its admissibility. A court which is asked to approach these questions at the interlocutory stage is much less likely to have that picture, and should be that much more careful in forming a view that the evidence is going to be irrelevant, or if relevant, unhelpful and/or disproportionate. One must also bear in mind the extent to which it is desirable to consider these matters at all at an interlocutory stage. One must be on one’s guard, in applications such as this, not to allow case management in relation to witness statements to give rise to significant time− and cost−wasting applications; those should not be encouraged. In my view, I should only strike out the parts of the witness statements which I am currently considering if it is quite plain to me that, no matter how the proceedings look at trial, the evidence will never appear to be either relevant or, if relevant, will never be sufficiently helpful to make it right to allow the party in question to adduce it. With evidence of this nature, that is likely to be quite a heavy burden. ”

One of my frequently-used tools for “fleshing out” a defendant’s case in a possession claim concerning allegations of sub-letting, false representation, no longer living at the demised premises, only or principal home, ‘false succession’ etc is by use of the CPR Part 18 procedure:

The Practice Direction to Part 18 effectively requires, first, an attempt at pre-litigation information request:

The litigation use of the Part 18 process was considered in the recent High Court case of (1) HRH Prince Khaled Bin Sultan Bin Abdulaziz Al Saud (2) HRH Princess Deema Bint Sultan Bin Abdulaziz Al Saud v (1) Ronald William Gibbs (2) Sunnydale Services Ltd [2022] EWHC 706 (Comm) where Mr Richard Salter QC, sitting as a Deputy Judge of the High Court, said (Emphasis in underlining):

“27. In support of his submission that the court should take a liberal approach to the scope of CPR Pt 18, Mr Atrill relied upon Harcourt v Griffin[2007] EWHC 1500 (QB), [2008] Lloyd’s Rep IR 386. In that case, Irwin J granted an application by a personal injury claimant for an order under CPR Pt 18 for further information to establish the full nature and extent of the insurance cover enjoyed by the respondents who were liable for his injuries. Mr Atrill particularly drew my attention to Irwin J’s observation (at [10]) that:

“The nature and extent of the Defendants’ insurance cover is not in itself a ‘matter .. in dispute in the proceedings’ between the Parties, in the sense that the proper quantum of damages payable to the Claimant could be determined without determining whether the Defendants can actually pay those damages. However, it appears to me that the wording of CPR. r. 18 requires to be interpreted reasonably liberally. The purpose of the jurisdiction must be taken to be to ensure that the Parties have all the information they need to deal efficiently and justly with the matters which are in dispute between them. Moreover, the wording need not be taken to imply that there must be a live disagreement about the relevant issue, since on very many occasions parties are properly required to furnish information pursuant to CPR r. 18 precisely to discover whether there is or is not a live disagreement between the parties on a given point. The whole thrust of the new approach to civil litigation enshrined in the Civil Procedure Rules is to avoid waste of time and cost and to ensure swift and, as far as possible, proportionate and economical litigation. Therefore, I have no hesitation in finding that if there is no rule of law or significant rule of practice to the contrary, then the wording of CPR r. 18 is broad enough to cover information of this kind…”

32. With great respect to Irwin J, it seems to me that his more liberal and pragmatic approach to CPR Pt 18 risks stretching the scope of the rule beyond that which can reasonably be thought to be contemplated by its terms. The rule expressly says that the matter about which clarification or further information can be sought must be one “which is in dispute in the proceedings”. That wording, in my judgment, makes it clear that there are two cumulative aspects to this restriction: the matter must be “in dispute”, and that dispute must be “in the proceedings”.

33. That means (for example) that requests under Pt 18 cannot be used for the purpose of obtaining material for cross-examination as to credit (Thorpe v Chief Constable of Greater Manchester [1989] 1 WLR 665), or to obtain material to support different claims between the same parties or claims against different parties (Trader Publishing Ltd v Autotrader.com Inc [2010] EWHC 142 (Ch)). As Morgan J observed in Barness v Formation Group Plc [2018] EWHC 1228 (Ch) at [10]:

34. The terms of the Practice Direction also make it clear that requests and orders under CPR Pt 18 must be strictly confined to matters which are reasonably necessary and proportionate for the stated purposes. In Hall v Sevalco Ltd [1996] PIQR 344 at 349 (a case about interrogatories under the RSC) Lord Woolf MR observed that “necessity is a stringent test”: and in King v Telegraph Group Ltd [2004] EWCA Civ 613, [2005] 1 WLR 2282  at [63], Brooke LJ laid particular stress on the strictness required by the terms of the Practice Direction:

35. In my judgment, the requirement of the rule that the information sought must relate to a “matter which is in dispute in the proceedings”, and the requirement of the practice direction that any request must be strictly confined to matters which are reasonably necessary and proportionate for one or other of the stated purposes, are threshold conditions. If those conditions are not satisfied, then the court simply has no jurisdiction to make any order under CPR Pt 18 (though, as Thirlwall J has pointed out, there may be other powers available to the court to assist in avoiding the waste of time and costs and in achieving the “swift and .. proportionate and economical litigation” referred to by Irwin J).

36. If, however, those threshold conditions are satisfied, then the question becomes a matter for the court’s discretion. The power under CPR Pt 18 is one of the court’s case management powers, and its exercise should be considered in the context of the overall case management of the action: see Toussaint v Mattis [2001] CP Rep 61, CA, at [16], per Schiemann LJ.”

The Judge importantly concluded:

“46. One of the complaints made by the claimants about Mr Gibbs’ responses to the RFI is that they show that he has failed to exercise reasonable diligence in examining relevant documents and undertaking reasonable enquiries. Mr Atrill invited my attention to the following passage in paragraphs [20.96], [20.98] and [20.101] of Matthews and Malek, Disclosure (5^th edn, Sweet & Maxwell 2017):

.. It is incumbent upon a party responding to a Request to a Pt 18 order to exercise reasonable diligence in formulating a response ..
.. [T]he court is likely to regard a party [as] being under a duty to undertake reasonable enquiries, but what constitutes reasonable enquiries will depend on the circumstances .. [A] party is not bound to make enquiries to the extent that such enquiries place an unfair or oppressive burden on him ..
.. If it is necessary for the purposes of responding to a Request, the party must examine the documents in his control .. or that of his servants or agents held in that capacity. If a such search would be unduly burdensome, then that may be a ground for objecting to the Request ..

47. In my judgment, those passages accurately state the law in this area. I would, however, add this rider. Where, as in the present case, a request under Pt 18 has already been answered, and the objection is that the answer given is inadequate because reasonable diligence has not been exercised, the proper way forward will not usually be to ask the court (as the claimants in the present case have done) simply to order that the original generally worded request should be answered again. Such a course will often just postpone until an application for sanctions for non-compliance or for relief from such sanctions is made the inevitable issue of what reasonable diligence in formulating a response to that request – and thus compliance with the order – actually requires. By that time it is likely to be too late to consider the appropriateness of the scope of the original order: see eg Griffith v Gourgey [2015] EWHC 1080 (Ch) at [40] and [54(1)]. 

48. The better course will usually be, wherever possible, to ask the court to specify in its order precisely what further enquiries the party responding to the Pt 18 request should carry out, so that the issue of what proper compliance requires is plainly defined from the outset. 

49. A related issue (which similarly arises on the facts of the present application) is how the court should approach assertions by the party responding to a Pt 18 that that party is not able to recall and/or to provide the requested information, either at all or in the detail requested. 

50. On an application under Pt 18, the court is not required to take at face value and without analysis everything that a party says in its response or its witness statements. In some cases it may be clear that there is no real substance in the assertions made: see eg (in the context of CPR Pt 24) ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [10], per Potter LJ. However, it is also clear that the court should not, on such an interim application, conduct a “mini-trial”. In most cases, it will neither be possible nor appropriate (having regard to the overriding objective) to go behind what is said in answers to Pt 18 requests: cf the guidance given by Beatson J in West London Pipeline and Storage Ltd v Total UK Ltd [2008] EWHC 1729 (Comm) at [80], in relation to challenges to claims to privilege. To reject a statement contained in a document verified by a statement of truth will, in many cases, involve the implicit conclusion that the person making the statement has lied. That is a conclusion which a court will understandably be reluctant to reach on an interim application where the statement has not been tested in cross-examination.”

A. Introduction

Mr Zeroual (the applicant), a (now former) secure tenant of the London Borough of Hammersmith & Fulham, was convicted on 18 December 2018 of two counts of fraud, contrary to section 1 of the Fraud Act 2006:

1. Count one – dishonestly failing to disclose information that he was under a legal duty to disclose “namely that he had sub-let part of the premises” of the flat in breach of the tenancy conditions.
2. Count three – dishonestly failing to disclose that his wife was living with him between 2010 and 2013 (before their later separation), which meant that he was no longer eligible for the single person’s discount in respect of council tax payable for the flat.

He was acquitted on count two which alleged that he had dishonestly failed to disclose a change in circumstances (i.e. that he no longer lived at his flat as his only or principal home) in relation to his application to purchase the flat under the Right to Buy.

The sentence passed down on 23 January 2019 was:

• 18 months imprisonment suspended for 18 months,
• with a 30 day Rehabilitation Activity requirement;
• in July 2020 he was ordered to pay £89,074 (of which £17,500 was to be paid as compensation to the council) pursuant to the Proceeds of Crime Act 2002.

B. The Appeal

The ground of appeal on count one focused on the directions given in relation to sub-letting and whether they were sufficient to deal with the issue of exclusive possession and whether any persons staying in the flat were rather and ’merely’ lodgers.

With respect to count three, which wasn’t originally appealed, it was argued both that the Judge failed to properly direct the jury as to the elements required to convict him and that it should not have been left to the jury because the failure to disclose information charged under this count was not a failure to disclose information which he was under a legal duty to disclose for the purposes of the Fraud Act 2006.

C. The decision

In R v Zeroual [2022] EWCA Crim 288 the Court of Appeal (Criminal Division):

(a) refused an application for an extension of time to appeal in light of the merits of the substantive appeal;

(b) refused permission to appeal on count 1;

(c) refused the application to vary the grounds of appeal to challenge the conviction on count 3 because the judge’s directions were sufficient and the evidence showed that there was a case to answer;

(d) refused the new applications for permission to appeal against sentence, the confiscation order and the costs order because there were no arguable grounds of appeal.

D. Reasons

The applicant’s case at trial on count one had been that he had always lived at the relevant flat but from time to time had lodgers. However, the jury clearly rejected his evidence that he was living at the flat, which had been a central blank of the prosecution’s case. It therefore followed that if he had been found to have moved out of the flat the occupants remaining had exclusive possession and there had been a clear sub-letting of part.

Complaint as to the failure of the judge to explain the terms dishonesty and gain was not made out given that it had been common ground that if sub-letting was made out then the applicant was intending to make a gain and was acting dishonestly.

As for count three, it was the applicant’s case that he had made an application to the local authority for a 2-bedroom property (rather than his 1-bedroom demised premises) because his wife was pregnant and that should have been sufficient notification that she was living with him. He hadn’t realised, he said, that he needed specifically to inform the Council Tax department and he was not acting dishonestly.

However, it was common ground that there was a legal duty to inform the local authority of any relevant change of circumstances, as confirmed by regulation 16 of the Council Tax (Administration and Enforcement) Regulations 1992, and there was therefore no basis for allowing a late variation to the grounds of appeal to allow this issue to be raised.

Interestingly the applicant had been acquitted on count two (see above) following the trial judge’s direction to the jury that they had to be sure he no longer had the intention to use the flat as his only or principal home against the backdrop of his intention to exercise the right to buy (remembering that the allegation was of sub-letting of part not all of the flat).

E. Conclusion

You often hear the comment that fraud is not a victimless crime but it would seem in this case that this would extend to the applicant himself, albeit the consequences follow on from his actions. As Lord Justice Dingemans explained at paragraph 9 of the judgment:

“He has been evicted from the flat, which he had intended to purchase under the right to buy scheme. He has lost his job with the civil service. His family circumstances have deteriorated. His savings have been confiscated. The applicant has suffered mental health problems being severe reactive depression, requiring treatment.”