High Court refuses to admit in-house lawyer’s evidence mid-trial

Moulder: Contrary to interests of justice to allow evidence

The High Court has rejected an application to introduce a witness statement from a Russian in-house lawyer after the trial had started and cross-examination of the claimants’ witnesses was almost over.

Mrs Justice Moulder said that, even if concerns for the lawyer’s personal safety lay behind her failure to provide a witness statement six months ago when the deadline expired, it was not clear if there was a “credible explanation” as to why she had changed her mind.

“Whilst the parties, it would appear, have adopted an approach in this trial of following every conceivable avenue regardless of cost, this does not entitle the parties to extend the time agreed and allocated to the trial and the court will not agree to extend the trial period unless there is good reason.”

Moulder J said she did not consider it necessary to express a view on the validity of Maria Savelova’s safety concerns.

The High Court heard that Ms Savelova described her position as head of legal in the strategic planning department of Tatneft, one of Russia’s biggest oil companies.

Tatneft claims four defendants were involved in an alleged fraud to divert payments away from the company and is suing them for damages of over $300m.

The company said it did not serve a witness statement for Ms Savelova by the deadline of the end of April 2020 because “she was concerned for her personal safety”.

The trial began on 12 October and is scheduled to last until 21 December. At the time of writing the judgment in mid-November, Moulder J said the claimant’s witnesses had finished giving evidence, apart from one who was ill and would be heard later.

Delivering judgment in PJSC Tatneft v Bogolyubov [2020] EWHC 3250 (Comm), she said Ms Savelova had, until now, not raised personal safety concerns in the proceedings, which have been going on since 2016.

Moulder J said that as a “highly experienced legal team”, Tatneft’s lawyers knew there was a risk of adverse inference being brought if Ms Savelova did not give evidence – “a common feature of commercial litigation”.

The judge said there was a risk that Ms Savelova’s evidence, both in her witness statement and orally, would be “framed in a way which seeks to respond to the evidence which has been given” in the trial.

“In effect, it allows the claimant, having heard nearly all the evidence given by its other witnesses for Tatneft in cross-examination, to seek to bolster its case by producing a witness to address gaps in their case.”

Moulder J went on: “Cross-examination is a means to test the evidence of a witness, but if in cross-examination the witness merely maintains the evidence as set out in the witness statement, in this case the court would have no reliable way of assessing whether the evidence reflected the independent recollection of the witness or is the product of having heard evidence in the course of the trial, and no way of assessing whether this evidence would have been given if prepared in advance of trial.

“In my view, the inherent unreliability of evidence produced in these circumstances, and the inability properly to assess the evidence produced in this manner, coupled with the unfairness to the defendants of admitting evidence which runs a high risk of having been tailored to fit the current state of Tatneft’s evidential case, means that the admission of such evidence at this stage of the proceedings is contrary to the interests of justice.

“Weighing all the factors discussed, in my view it is clear that in the circumstances of this case the application must be refused.”

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