Court of Appeal clarifies the test for cross-examination on a Norwich Pharmacal affidavit

30/04/21

Stokoe Partnership Solicitors v (1) Patrick Grayson and (2) Grayson + Co Ltd [2021] EWCA Civ 626

The Court of Appeal has given judgment on the circumstances in which the maker of an affidavit sworn under a Norwich Pharmacal order may be ordered to attend for cross-examination on the affidavit.

Mr Patrick Grayson was named in a sworn affidavit as having issued instructions to access the Claimant’s confidential information. The Claimant served a Part 7 claim on Mr Grayson. It also sought Norwich Pharmacal relief, seeking to identify who instructed Mr Grayson. Mr Grayson consented to the relief; however, his responsive affidavit denied any involvement in the underlying scheme. After a series of other procedural steps—including correspondence and Part 18 requests—had failed to clarify the inconsistency between the two affidavits, the Claimant sought to cross examine both deponents on their affidavits. That application was rejected by William Davis J.

On appeal, the Claimant sought an order for cross-examination against Mr Grayson only. Although the Court of Appeal was critical of Mr Grayson’s conduct in the litigation—holding that he had “engaged in months of stonewalling and bare denials” and had “brought this litigation on himself”—it refused the order. Its reason was that “cross-examination on the affidavit would pre-empt cross-examination at trial” and that it cannot be just and convenient to order cross-examination on a Norwich Pharmacal affidavit sworn by a party to substantive proceedings concerning overlapping issues: §7, §33.

The Judgment is here.