Grizonic v Suttor

HIS HONOUR : Mr Jones seeks leave to read the affidavit of Ms Wade sworn 7 June 2010, notwithstanding that it was served outside the time limited for the service of affidavit evidence and in circumstances where I have refused leave to Ms Suttor to read a late affidavit.

There are important differences between the circumstances affecting Ms Wade's affidavit and those affecting Ms Suttor's affidavit. So far as Ms Suttor's affidavit was concerned, in large part, if not exclusively, it addressed facts that were in evidence or would otherwise be proved by documents or matters which were irrelevant. It covered an extensive period of time from the birth of Ms Suttor to the present, over many pages.

This affidavit is much more confined in character. It addresses two issues: first, the proof by Ms Wade of how a debt, which the former partnership is said to have owed Mr Trnka and which was ultimately assigned to Ms Wade, arose and, secondly, Mr Grizonic's attempts to sustain the restaurant business after December 2003.

I cannot see how the second of those issues, which is covered by paragraphs 6, 7, 8 and 9 of the affidavit, is relevant to any fact in issue in the proceedings, and I will in any event reject those paragraphs.

The other paragraphs go to a relevant issue in the proceedings. Because of the lateness of this evidence, it is necessary to give close consideration as to whether its admission would be prejudicial to the other parties, who claim that they are deprived of an opportunity of testing it. If, as they say, Mr Oliveri or Mr Grizonic do not give evidence, then that would in the ordinary course count significantly against the ultimate acceptance of Ms Wade on matters which one or other of them could corroborate, and paragraphs 4 and 10 of the affidavit in question suggest that there are matters which each of them could corroborate.

It is difficult to see, however, what further investigations the other parties might have taken had this material been served at an earlier stage. It relates essentially to conversations and transactions between Ms Wade and Mr Grizonic, and cash payments which would be practically impossible to verify by subpoena or otherwise. So far as the American Express payments are concerned, the statements are exhibited to the affidavit, and it is difficult to see what further investigations could have produced in that respect.

Not without reservation because of its lateness, but because I think the prejudice, if any, from its admission is slight and because – unlike and distinct from Ms Suttor's affidavit where I think the prejudice from its exclusion was practically nil and its relevance slight – this affidavit is in a different category – I will grant leave to read paragraphs 1 to 5 and 10 to 12 of the affidavit of Dawn Wade sworn 7 June 2010.