Tuesday 19th October 2021
The Claimant appeals the Order of Mr Justice Saini, dated 18 December 2020, dismissing the Applicant’s appeal (with permission to appeal having previously been given by Foster J) from the order of Judge Godsmark QC (`the circuit judge’) made on 22 April 2020, in which the circuit judge in effect directed the cross-examination of Mr Sarwar of the Applicant’s solicitors firm.
This matter arises from the claim of the Applicant’s former client, a Mr John Hunt, for noise-induced hearing loss. The Respondents to this appeal were the third, fifth and sixth Defendants to that claim. The claim against them was discontinued at the final hearing on 12 December 2019. The circuit judge awarded the Respondents their costs and decided that determination of whether these costs should be enforceable against the claimant and/or payable by the Applicant should be made a further hearing before the circuit judge or his nominee.
The Respondents sought orders that QOCS be disapplied (because of the claimant’s alleged fundamental dishonesty) and that the Applicant pays wasted costs. The Applicant submitted the statement of Mr Sawar who then was cross-examined at the hearing.
The Applicant appealed on the essential basis that the direction for oral evidence was contrary to the guidance given by the Court of Appeal in Ridehalgh v Horsefield  Ch 205; and that there would be no purpose to cross- examination because Mr Sarwar could not say more than was in his statement without impugning the claimant’s privilege.
The judge dismissed the appeal on the basis said that the Applicant was no longer acting for the claimant, privilege had likely been waived, and it was clear that there were radically different accounts given by the claimant and Mr Sarwar; so that whilst it may well be rare to require the attendance of a solicitor, it was difficult to see how the issue could be resolved without oral evidence from Mr Sarwar.
Lower Court Judgment: