The recent case of Anthony McGann v Michael Bisping  EWHC 2951 received more column inches than most contractual disputes. This was largely due to the ever growing popularity of mixed martial arts and the Ultimate Fighting Championships in which the Defendant participates.
Further press interest was then generated due to the alleged scuffle between the parties outside the court. However beyond the tabloid headlines the case provided a useful reminder to practitioners in respect of the use of notices to prove.
Notice to prove
As set out in CPR 31.19 “a party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves notice that he wishes the document to be proved at trial.” Such notices should be served by the date of serving witness statements or within 7 days of disclosure of the document, whichever is later. The notice itself should be completed on form N268.
The wording of the Rule is unambiguous; if no notice is served then the receiving party will be deemed to have admitted the authenticity of the document irrespective of whether the point has been raised elsewhere.
For example it is fairly common in cases where dishonesty and/or fraud are suspected for the defence to challenge the authenticity of the claimant’s documents, either by reference to specific items or generally across the whole case. However unless such a pleading is then followed up with a notice to prove following disclosure the defendant will have lost the chance to raise the issue at trial.
In the event that a notice to prove is not served all is not lost. It is still open for the receiving party to challenge the accuracy and meaning of the contents of the document, it just cannot be argued that the document itself is not authentic.
Equally the service of a notice to prove may not in itself be sufficient to fully challenge all aspects of the document. In Redstone Mortgages Ltd -v- B Legal Ltd  EWHC 3390 (Ch) the court ruled that a notice to prove was not sufficient to allow a party to allege forgery of the document. Instead the allegations should be set out clearly in the pleadings so that the parties and the court are fully aware of them at the earliest opportunity.
In McGann v Bisping the Defendant had made it clear in his defence and counterclaim, which were served four years before the trial, and in witness statements served eleven months later, that the authenticity of the documents was in dispute. The parties had then proceeded on that basis throughout the proceedings and it was only when the opening submissions from Claimant’s counsel were revealed that the lack of a notice to prove was raised.
Relief from sanction
The judge decided that it was in the interests of justice for the test in Denton v White to be applied to determine if relief should be granted. In applying the test the judge ruled that allowing the Claimant’s objection to be raised at such a late stage when the parties had both prepared for trial on the basis of the authenticity being in dispute would be unjust and contrary to the overriding objective. Relief was therefore granted and the Defendant was permitted to challenge the authenticity of the documents. The judge also highlighted the duty of co-operation under CPR 1.3 and said that whilst parties were not obliged to point out their opponents procedural errors if they are intending to take such points they should do so promptly.
Ultimately the decision did not greatly assist the Defendant who was ordered to pay the claimant in excess of $400,000. However the judge criticised both parties for their conduct in the litigation and specifically indicated a reluctance to award the Claimant costs on the basis of him “putting forward false documents and false evidence”.
What can we learn?
- Where possible any allegations about fabrication or authenticity of documents should be fully set out in the pleadings.
- However this will not be sufficient in itself and a formal Notice to Prove should also be served within the defined timescale.
- In the event that a Notice to Prove is not served, the court may grant relief and allow authenticity to be challenged, especially if the parties have prepared for trial on that basis and the procedural point is only taken late in the day by the opposing side.