The Dekagram: 27th January 2025

Articles

27/01/2025

This week’s Dekagram concentrates on matters of evidence: the use of Part 18 requests, and the admissibility of settlements in multiparty claims. In both instances the courts have grappled with the use of evidence of (at best) peripheral usefulness at the stage of proceedings at which the consideration arose. As might be anticipated, in both cases the courts refused to it. A further reminder, if it were needed, of the importance of reviewing cases periodically and considering the evidence required at each and every stage of proceedings.

A court is unlikely to allow evidence of the Defendant’s other settlements in a trial: Omanovic v Shamazi Ltd, Ismael Abdela Mohammed [2025] EWHC 110 (KB)

Personal injury claims in which there are multiple claimants raise a host of issues. Defendants may choose to settle claims by some claimants but leave others to be dealt with at trial. The admissibility of such settlements as evidence in the outstanding trial has long been a thorny point in civil litigation. In Omanovic v (1) Shamazi Ltd, (2) Ismael Abdela Mohammed [2025] EWHC 110 (KB), Mr. Justice Martin Spencer dealt with the Defendants’ application that the terms of settlement with two claimants would be inadmissible in the trial of the remaining claimant. This article deals with the facts, the judgment, and thoughts on the judgment.

Facts

“MyTenNights” was a company founded to help collect charitable donations made in the last ten days of Ramadan. Three claimants brought a claim against the Defendant, alleging that they were promised equity in the company. Each claimant identified a different stake in the company. Two of the claimants’ claims were settled, with the claim of Mr. Omanovic proceeding to trial.

The Claimant sought to adduce as evidence not just the fact of settlement, but also the quantum of settlements. This was on the basis that it was alleged that the Second Defendant had acted dishonestly towards the Claimant. Further, it was alleged that the Second Defendant’s Defence and Witness Statement had asserted matters which were inconsistent with him having compromised the claims of the second and third claimants. In light of this, the Defendants had made the application to exclude such evidence.

Judgment

Mr. Justice Martin Spencer acceded to the Defendants’ application. The court should decide the matter on the basis of the evidence surrounding the formation and establishment of “MyTenNights”. The Claimant would still be able to assert dishonesty. It would put the Second Defendant in an impossible position, and the court in a very difficult position, if dishonesty was alleged on the decision to settle the claims by the second and third claimants. Mr. Justice Martin Spencer acknowledged that the claims could have been settled for a number of reasons, none of which could form an acknowledgement or indication of the Second Defendant’s own dishonesty.

He described it as “extraordinary” if a decision to defend a claim could be deemed dishonest because others had been settled. There would have to be a close nexus between the settlement and the issue before the court before there could be disclosure of such settlements.

In any event, Mr, Justice Spencer would have exercised his discretion to exclude because of:

  1. The prejudicial effect of seeing such settlements,
  2. The difficult or impossible position it would put the Second Defendant in,
  3. The need to promote the policy to encourage settlement in all cases.

Comment

There are two points to take away from this judgment. First, a court is very unlikely to allow a claimant to adduce evidence of any other settlements in a trial of a remaining outstanding claim. To do so would undermine the confidential nature of such settlements, and result in an unfair trial for the Defendant. Second, there needs to be a closer nexus between the settlement and the issue at trial for such settlements to be admissible. A court is unlikely to accept the view that the mere existence of settlement when a matter has been subject to a defence is indicative of dishonesty or lack of credibility. Defendants can settle claims for commercial reasons, and such settlement cannot be presupposed to be an admission of liability.

About the Author

Anirudh Mandagere has a broad practice across all areas of chambers’ specialisms, acting for both claimants and defendants, and is an enthusiastic and valued member of the travel team. Before joining Deka, Anirudh worked as a judicial assistant at the Court of Appeal and taught law at the London School of Economics.

Part 18: The Goldilocks Application: Getting a Request for Further Information Just Right
Rehman and others v Secretary of State for Health and Social Care and Others (EWHC, KBD, 23 January 2025)

The High Court refused an application for further information, pursuant to CPR 18, on Thursday, in long-running litigation arising out of the COVID pandemic. The decision is a timely reminder of the exceptional nature of the jurisdiction (particularly before the pleadings have closed), the importance of careful drafting and the need for clear justification of any request.

Context

The application related to 25 claims brought by relatives of care home residents who died in the early stages of the pandemic. Most of the claimants alleged that the resident had died after contracting coronavirus within the care home. The claims, which are made against the Secretary of State for Health and Social Care and individual care homes (as well as other local authorities and hospital operators), are pursued in negligence and under the Human Rights Act 1998.

The claims were issued separately in early 2023 but were case managed together. The claimants then applied for a stay to enable the parties to comply with the Pre-Action Protocols. A stay was granted in September 2023 and the claimants were ordered to serve Particulars of Claim by 25 May 2024, which was then extended by 28 days, by consent. In December 2023, the claimants served a letter of claim together with draft Particulars of Claim and a generic request for further information.

On the day service of the Particulars of Claim was due, the claimants lodged an application for a further extension of time and for orders requiring the care home defendants to provide further information, pursuant to CPR 18. The requests largely repeated the generic written questions, sent in December 2023, which the various defendants had engaged with to differing degrees. The questions did not differentiate between the claims, and as a result (for instance) sought information about practices at the care home months after the resident had died. The application also, explicitly, sought information from the care homes in order to investigate the claims not against the care home but the Secretary of State.

The application was opposed by the care home defendants.

The law

CPR r.18.1 provides that:

“The court may at any time order a party to (a) clarify any matter which is in dispute in the proceedings; or (b) give additional information in relation to any such matter, whether or not the matter is contained or referred to in a statement of case”.

The Practice Direction to Part 18 provides that:

“A Request should be concise and strictly confined to matters which are reasonably necessary and proportionate to enable the first party to prepare his own case or to understand the case he has to meet”.

The Master summarised the principles relevant to the power to order further information, explained in HRH Prince Khaled Bin Abdulaziz Al Saud v Gibbs [2022] EWHC 706 (Comm), as follows:

  1. The rule imposed a restrictive test. The matters asked about must be “in dispute” and that dispute must be “in the proceedings” (para 32);
  2. Orders must also be strictly confined to matters which are reasonably necessary and proportionate for the stated purposes. Necessity is a stringent test (para 34);
  3. The above requirements are threshold conditions. If the conditions are not satisfied then the court simply has no jurisdiction to make any order under r.18 (para 35);
  4. If the requirements are satisfied, then the question becomes a matter for the court’s discretion. The exercise of the power should be considered in the context of the overall case management of the action (para 36);
  5. Statements of case, if properly drafted, should already contain the information necessary to define the issues. It follows that it will not usually be necessary or proportionate for the other party to request a party who has served a compliant but concise statement of case to expand upon that pleading by the provision of more detailed information (paras 40-41);
  6. It will also not often be necessary or proportionate for the other party to request a party to provide at any earlier stage information which will in due course be revealed on disclosure or which will be contained in witness statements or expert reports (para 42);
  7. The burden must always be on the party seeking the order under r.18 to demonstrate both that the threshold conditions are met, and to satisfy the court that an order would assist in dealing with the case justly in accordance with the overriding objective (para 45).

The Master also summarised the principles applicable to such applications made prior to the service of Particulars of Claim, derived from Barness v Formation Group PLC [2018] EWHC 1228 (Ch), as follows:

  1. Applications for Part 18 orders at this stage were “on any view” “most unusual” (para 5);
  2. The Court must consider its powers in such an application “with some care” (ibid);
  3. An application to “ask questions so as to elicit information which might give them claims against other defendants or […] further separate claims against the [existing] defendants” does not relate to a matter which is (currently) in dispute in the proceedings” (paras 9-10 and 23);
  4. In considering whether the information is strictly necessary, PD18 para 1.2 does not require the Court to consider what information that party reasonably needs to prepare witness statements or obtain expert evidence. The relevant consideration is whether the information is reasonably necessary and proportionate to enable the claimants to serve Particulars of Claim, as “[t]he next thing that has to be done by the claimants” (para 12).

The decision

The Master dismissed the application on several grounds, including that (in one sense) the application was made both too early (in that the pleadings had not yet opened) and too late (in that it ought to have been raised at the September 2023 hearing, if these requests were deemed necessary to finalise the pleadings). The main grounds were however, as follows:

  1. The requests were generic and often covered periods or issues which were irrelevant;
  2. Seeking information on a matter relevant to a claim against a different party was not a ‘matter in dispute in the proceedings’ or at least, weighed against the exercise of the discretion;
  3. Insofar as the claimants had prepared detailed draft pleadings, they evidently had enough information to plead a claim; and
  4. Complying with the requests would necessitate trawling through dozens of individual staff and resident records, which would take considerable time and expense, which may ultimately be wasted if the claim is discontinued before service.

Comment

This decision reaffirms the exceptional nature of the power to order a party to give further information and that the mere fact that a party fails or refuses to answer relevant questions was not a sufficient reason to exercise the discretion. It also emphasises how the timing and context of the application are just as important as the nature of the information sought: the fact that (i) the claimants had not suggested, when previously seeking a stay, that further information was necessary in order to plead their case and indeed, (ii) had served draft pleadings, were significant factors for the Court.

Tom Collins appeared for one of the successful care home defendants.

About the Author

Called in 2010, Tom Collins is ranked in the Legal 500 as a specialist in Travel Law. He has considerable experience across a wide range of travel and private international law disputes and has advised claimants and defendants in multi-party actions.

Featured Counsel

Tom Collins

Call 2010

Anirudh Mandagere

Call 2019

Latest News & Events

The Dekagram: 17th February 2025

This week we examine a decision on the tension between open justice and protection of commercially sensitive information (we understand, by the way, that on 25th February the Court of Appeal will hear the appeal in PMC relating to the circumstances in which anonymity orders…

The Dekagram: 10th February 2025

This week we look at two decisions, both of which will be of critical importance to practitioners in pursuance of contested litigation. In one, unusually, without prejudice correspondence was admissible in a case involving fundamental dishonesty; whilst in the other, the court reviewed the authorities…

Andrew Warnock KC and Edwin Buckett successfully defend the Chief Constable of Leicestershire in a £10m brain damage claim

Following a 5-day liability trial in the High Court in Manchester, the Claimant’s negligence and Human Rights Act claims were dismissed by HHJ Bird sitting as a Judge of the High Court. The Claimant was a Type 1 diabetic who suffered from a history of…

Subscribe to our mailing list

Deka Chambers: 5 Norwich Street, London EC4A 1DR

© Deka Chambers 2025

Search

Portfolio Builder

Select the expertise that you would like to download or add to the portfolio

Download    Add to portfolio   
Portfolio
Title Type CV Email

Remove All

Download


Click here to share this shortlist.
(It will expire after 30 days.)