Skywind Holdings Limited & Anor v Simon Robert Wilson & Ors

MR JUSTICE BRYAN A. INTRODUCTION

1. The parties appear before the Court on the pre-trial review in this action. The trial was due to commence with 3 days' judicial pre-reading commencing on 3 February 2026, with openings thereafter on 9 February 2026, with the trial being scheduled to conclude on 24 March 2026. Due to judicial availability, the pre-reading will now take place between 9 and 11 February 2026, with openings on 12 February and the trial can be accommodated to conclude on 30 March 2026 (i.e. at the end of term, subject to finalisation of the precise timetable).

2. In addition to the specific applications before the Court on the Pre-Trial Review ("PTR"), it will be necessary to give further directions to trial and to set the provisional trial timetable (subject to final confirmation by the trial judge at the outset of the trial). A consequence of the commencement of the pre-reading taking place a week later than previously envisaged is that there is now also more time to accommodate any necessary further steps before trial. This is of potential relevance to certain of the applications before me on the PTR and what can fairly be accommodated before the trial.

3. There are the following applications for determination at the PTR: (a) The Expert Evidence Application – This is an application by the First and Third Defendants for permission to rely upon an expert report relating to the technical possibility of forging WhatsApp and Telegram messages and consequential directions. (b) The Burton 3 Application – This is an application by the Claimants for permission to rely on paragraphs 25-34 of the third witness statement of Nicholas Burton ("Burton 3") at trial. (c) The PD 57AD Application – This is an application by the Claimants for permission to rely on documents disclosed by them after the date for Extended Disclosure which were in their control on that date, pursuant to PD 57AD.12.5. (d) The Video Link Application – This is an application by the Claimants for an order that their witness, Mr Burton, may give evidence at trial by video link from Switzerland at the Swiss offices of the Claimants' solicitors, Quinn Emanuel, in Zurich. (e) The Privilege Application – This is an application by the Second Defendant, Mrs Wilson, for an order that the Claimants produce for inspection by the Court certain documents in order for the Court to determine whether and to what extent they are privileged.

4. There is an Agreed Agenda before the Court, pursuant to which the parties have agreed that the applications will be addressed and determined in the order identified above. It is also common ground that the Privilege Application, which is to be heard last, if time permits, will be heard after the Court has given directions in relation to trial preparation and the provisional trial timetable.

5. On 8 December 2025, the First Defendant, Mr Wilson, provided the Claimants with substantial draft amendments to his Defence, to which the Claimants responded, objecting to the amendments on 9 December 2025. On the following day, 10 December 2025, the First Defendant issued his application, seeking the permission of the Court in respect of such objections (the "Amendment Application").

6. In circumstances in which it was clear that the Claimants would object to the amendments, and would need time to serve responsive evidence, the Amendment Application would not be ready to be heard at the PTR (even assuming it could have been accommodated). The Court accordingly gave directions as to the service of evidence in relation to the Amendment Application, and set a timetable for a one-day hearing to determine the Amendment Application for 14 or 15 January 2026 (the "January Hearing").

7. Due to other existing judicial commitments, the trial judge was not available to hear this PTR or the January Application. This is of potential relevance to the Privilege Application (it being common ground that it would not have been appropriate for the trial judge to hear this application, lest he or she considered it appropriate to review the associated documents, but concluded that they were, as claimed, subject to privilege). B. BACKGROUND B.1. The Parties

8. The Claimants are Skywind Holdings Limited ("Skywind") and In Touch Games Limited ("ITG"). In these proceedings, Skywind brings claims for alleged breach of warranty, fraudulent misrepresentation and conspiracy in relation to what is said to be a fraud carried out within ITG, a gambling company, prior to Skywind's acquisition of ITG on 2 June 2022.

9. The Defendants are former shareholders and sellers of ITG. The First Defendant ("Mr Wilson") was ITG’s CEO and manager. The Second Defendant ("Mrs Wilson") was a director of ITG and Mr Wilson's wife (though they have since divorced). The Third Defendant, Ruskin Properties Limited ("RPL"), is a company which was previously jointly owned by the Wilsons and is now, following their divorce, only owned by Mr Wilson.

10. The Claimants are represented by Quinn Emanuel. Mr Wilson and RPL are represented by Aspect Law, and Mrs Wilson is jointly represented by Chamberlain Hamnett and Osborne Clarke.

11. The factual background to the proceedings and detail as to the issues arising appears in the Amended Agreed Case Memorandum and Agreed List of Issues. The summary of the background and issues arising set out below suffices to place the various applications in context. B.2. The Factual Background

12. Between May and September 2021, ITG underwent a regulatory audit required by the Gambling Commission (the "GC") following previous regulatory scrutiny of ITG. The audit was carried out by RSM Risk Assurance Services LLP ("RSM" and the "RSM Audit") and included the review by RSM of a sample of ITG's customer accounts in September 2021 (the "September 2021 Review"). RSM concluded that ITG had demonstrated a positive direction of travel regarding responsible gaming controls.

13. The Claimants' case is that the RSM Audit, and in particular the September 2021 Review, was marred by an audit fraud orchestrated by Mr Wilson involving the forgery of customer bank statements and payslips, the aim being to suggest to RSM that ITG had complied with anti-money laundering and responsible gambling requirements, when it had in fact not done so (the "RSM Audit Fraud").

14. The Claimants rely in this regard, inter alia, on the witness evidence of Nicholas Burton, a former employee of RPL, who, in Burton 1 and 2, addresses his account of what is characterised as the RSM Audit Fraud, and what he says is Mr Wilson's role in it (see in particular paragraphs 27-48 of Burton 1 and paragraphs 10-35 of Burton 2

15. The Claimants' case is that Mr Wilson knew about the RSM Audit Fraud, it being alleged that he orchestrated and participated in it and that Mrs Wilson also knew about it shortly thereafter. In relation to Mrs Wilson's knowledge of the RSM Audit Fraud, the Claimants rely, inter alia, on witness evidence from Mr Burton, who describes discussing the RSM Audit Fraud with Mrs Wilson on multiple occasions (see Burton 1, paragraphs 49-54 and 114-123). Mr Wilson denies the existence of the RSM Audit Fraud or knowledge of the same, whilst Mrs Wilson denies she had any knowledge of any such fraud.

16. On 2 June 2022, Skywind acquired the shares of ITG pursuant to a share purchase agreement (the "SPA") by which Mr and Mrs Wilson warranted, amongst other matters, that save as disclosed in the accompanying disclosure letter, and so far as the warrantors were aware, there were no circumstances likely to give rise to any material litigation or other proceedings. The disclosure letter referred to whistleblowing allegations made by Mr Burton on 4 February 2022 but stated that those allegations had been retracted on the same day. The Claimants allege, but the Defendants dispute, that Mr Wilson additionally represented to Skywind, prior to the conclusion of the SPA, that there was no truth to Mr Burton's allegations.

17. On 14 December 2022, as part of the process of dealing with post-completion reconciliations, Skywind and the Defendants entered into a Settlement Deed compromising certain claims between the parties. The Defendants' case is that the Settlement Deed compromised the claims brought by Skywind in this litigation, but the Claimants deny this, in summary, on the basis of the following pleas: (1) Skywind was induced to enter into the Settlement Deed by fraudulent misrepresentation, and the Claimants rescinded the Settlement Deed as soon as they discovered the true facts, or have suffered a loss as a result of entering into the Settlement Deed in reliance on fraudulent misrepresentation; (2) As a matter of construction, the Settlement Deed does not compromise the claims; and/or (3) Any relevant release in the Settlement Deed is ineffective because it was sharp practice on the part of the Defendants to seek a general release of claims whilst being aware of the RSM Audit Fraud.

18. In this regard, the Claimants rely, amongst other matters, on witness evidence from Mr Burton about his alleged discussions of the RSM Audit Fraud with Mrs Wilson following the conclusion of the SPA, including Mr Burton's explanation that a reference by Mrs Wilson to "all the evidence of ... the forgery" during a call between them on 17 December 2022 – i.e. three days after the conclusion of the Settlement Deed – was, and could only have been, a reference to the RSM Audit Fraud (see Burton 1 at paragraphs 124-131).

19. Mr Burton renewed his allegations about the RSM Audit Fraud to RSM on 15 December 2022 (as addressed in Burton 3 at paragraph 26) and also to ITG in January 2023, following which, he approached the Gambling Commission. This led to regulatory action against ITG. On the Claimants' case (though the same is disputed by the Defendants) this led to the suspension and surrender of ITG's licence in early September 2023. B.2. The Relevant Procedural History

20. The claim was issued and Particulars of Claim were filed on 20 December 2023. Defences were filed on 5 March and 20 March, and Replies filed on 17 May 2024. There have been a series of subsequent amendments to the pleadings.

21. At the CMC on 5 December 2024, the Court made an order for Extended Disclosure, which was given on 21 February 2025. The documents which form the basis of the Privilege Application were disclosed on this date. The Claimants have subsequently disclosed further documents, including documents provided to them by Mr Burton, which were disclosed on 13 June, 29 July, 8 August, 3 October, 31 October and 2 December 2025.

22. The circumstances in which such further disclosure was provided has been a matter of some controversy between the parties. The Claimants' position is that the documents provided by Mr Burton were provided in part in response to requests made by the Defendants of Mr Burton via Quinn Emanuel. In contrast, the First Defendant alleges that they have "drip fed" these and other documents for tactical reasons. That is denied by the Claimants who have provided a witness statement from Mr Gerbi ("Gerbi 2"), who addresses at paragraphs 43-77 as to why it is said that is not the case.

23. On 15 August 2025, the Claimants served expert reports on quantum and data manipulation in accordance with the Court's order.

24. On 22 September 2025, Mr Wilson issued an application for specific disclosure, including in relation to the 9 December 2022 email at issue in the privilege application. That application was compromised by way of a consent order dated 28 October 2025, pursuant to which the Claimants agreed (amongst other things) to re-review the emails between Mr Cooper and Mr Butler from November 2022 to March 2023, which contained certain search terms relating to Mr Burton's allegations, and the 9 December 2022 email to confirm that privilege had been correctly claimed and provide any further disclosure on 31 October 2025.

25. On 7 October 2025, Mrs Wilson made the Privilege Application and, by the same application notice, an application requiring the Claimants to provide a witness statement addressing aspects of their disclosure.

26. Mrs Wilson also applied for an order excluding Mr Burton's trial witness statements, unless Mr Burton provided her with a witness statement, setting out his current residential address, for third party disclosure against Mr Burton, and separately for third party disclosure against RSM.

27. On 22 and 31 October 2025, the Defendants served expert reports on quantum and data manipulation respectively in accordance with the Court's orders and extensions agreed between the parties. Mr Wilson and RPL additionally served an expert report, dated 29 October 2025, by Ryan Shields of S-RM on the possibility of fabricating WhatsApp and Telegram messages which was done without the Court's permission, the report being served on 31 October 2025 (the "Shields Report"). As foreshadowed, Mr Wilson did not have permission to serve such expert evidence, and it was not foreshadowed in earlier correspondence. This is the subject of the Expert Evidence Application.

28. On 18 November 2025, the Claimants served Burton 3 after the deadline for service of factual witness statements. An amended version of Burton 3 was served on 2 December 2025. Burton 3 in its amended version is the subject of the Burton 3 Application.

29. On 21 November 2025, Mrs Wilson obtained an order for third party disclosure against RSM. The Claimants did not attend the hearing of Mrs Wilson's application, and there is an issue as to whether such application was fairly presented to the Court. In this regard, the Claimants say that there was no mention of the fact that Mr Burton had addressed the timing of his communications with RSM and Mrs Wilson's follow-up request about the document provided by him in Burton 3.

30. On 25 November 2025, the Claimants made the Video Link Application, the Burton 3 Application and the PD 57AD Application.

31. On 5 December 2025, HHJ Pelling KC dismissed Mrs Wilson's application to exclude Mr Burton's evidence, unless he provided her with his current residential address, and ordered that Mrs Wilson pay the Claimants' costs of that application on the indemnity basis, on the basis that Mrs Wilson's conduct in pursuing that application had been "unreasonable to a very high degree".

32. The Court also granted permission for Mr Burton to be served with a third party disclosure order outside the jurisdiction, and by an alternative method (emailed Quinn Emanuel) but only granted permission as to part of that application (which is not in any event before the Court on the PTR).

33. As already foreshadowed, on 8 December 2025, Mr Wilson provided the Claimants with substantial draft amendments to his Defence, and following correspondence on 9 December 2025, in which the Claimants made clear that they would object to the amendments, the Amendment Application was issued on 10 December 2025, and pursuant to the directions given by the Court, will now be heard at the January Hearing.

34. On 10 December 2025, Mrs Wilson notified the Claimants that she no longer opposed the PD 57AD Application and the Burton 3 Application, and no longer pursued her separate application for a witness statement explaining various aspects of the Defendants' disclosure.

35. On 12 December 2025, RSM disclosed 14 documents pursuant to the third party disclosure order made against it on 21 November 2025, indicating that RSM was providing all disclosable documents in a single tranche (rather than the two tranches envisaged in the order). Osborne Clarke provided the documents to the Claimants on 15 December 2025.

36. The documents provided by RSM are dated between 15 December 2022 and 9 January 2023. The Claimants say that they are consistent with Mr Burton's account of his contacts with RSM in Burton 3. C. The expert evidence application. C.1. Relevant Legal Principles

37. The Court has a duty to restrict expert evidence to what is reasonably required to resolve the proceeding (see CPR 35.1.). As explained by Warren J in British Airways Plc v Spencer [2015] EWHC 2477 (Ch) ; [2015] Pens. L.R. 519 at [68], the Court looks at the pleaded issues and applies a three-stage test in order to determine whether expert evidence should be permitted: (a) is expert evidence necessary (in the sense that a decision "cannot be made without it": [63]) rather than merely helpful, to decide a pleaded issue? If it is necessary, it should be allowed. (b) if it is not necessary, will it assist the judge in determining that issue? (c) if it would assist but it is not necessary, is the expert evidence on that issue reasonably required to resolve the proceedings, having regard to the factors set out in [63] of Warren J's judgment, i.e. (i) the value of the claim in proportionality; (ii) the effect of a judgment either way on the parties; (iii) the cost of the evidence and who will pay for it; (iv) "the delay, if any, which the production of such evidence would entail (particularly delay which might result in the vacating of a trial date)"?

38. The party seeking permission to adduce expert evidence has the burden of establishing that the expert evidence is reasonably required (see Re RBS (Rights Issue Litigation) [2015] EWHC 3433 [Ch] at [18] (Hildyard J and Chief Master Marsh)). In determining the question, a key consideration is whether the subject matter and opinion is such that a person without instruction or experience in the area of knowledge or human experience will be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in this area (see British Airways v Spencer at [63]; and Re RBS (Rights Issue Litigation) at [17]).

39. The rules envisage that the parties address the need for expert evidence at an early stage in the proceedings, including by indicating whether expert evidence is required in the directions questionnaire. It has been said that the failure (without good reason) to raise the need for expert evidence at an early stage is contrary to the ethos of the CPR (see Illiquidx Limited v Altana Wealth Limited [2024] EWHC 2191 [Ch], at [163] to [165] (Chief Master Shuman)). Any application for permission to call an expert witness or certain expert reports should normally be made at the CMC (see H.2.2 of the Commercial Court Guide).

40. It is contrary to the "cards on the table" approach to litigation for a party to keep silent as to its intention to obtain an expert report, and then make a belated application to rely upon it, and it has been said that the Court should be slow to give any traction to such tactics (see Obi v Patel [2018] EWHC 3985 (QB) , at [15] and [19] (HHJ Cotter QC)). C2. Application for permission to rely on the Shields Report

41. Mr Wilson and RPL seek permission to rely on the Shields Report, which addresses the technical feasibility of fabricating WhatsApp and Telegram messages, by reference to three screenshots of WhatsApp messages exchanged between Mr Burton and Mr Wilson on 29-31 August 2021, and of Telegram messages exchanged between them on 31 August 2021 (the "Messages").

42. The Messages show, amongst other things, that Mr Wilson provided Mr Burton with access to his personal Google Drive in order to procure Mr Burton's (unwitting) assistance in committing the RSM Audit Fraud. The screenshots in question are set out in appendix III to the RSM Report. The Shields Report, which runs to 82 pages (including appendices) addresses two distinct scenarios: (a) Scenario 1: Creating fabricated WhatsApp/Telegram messages on the date on which the messages were purportedly exchanged – i.e. in August 2021. (b) Scenario 2: Creating fabricated WhatsApp/Telegram messages at a later date than that on which the messages were purportedly exchanged – i.e. after August 2021.

43. Mr Shields expressly excludes from consideration the question of whether the metadata of the screenshots (as opposed to the messages) could have been manipulated. It appears that this may be on the basis that that is unlikely (see the Shields Report at paragraph 50). Mr Shields does not address the question of metadata in his report, notwithstanding that being one of the matters he was asked to consider.

44. Additionally, Mr Wilson and RPL seek consequential directions. The directions proposed by them on 31 October 2025 were that the Claimants would obtain their own expert evidence in just under three weeks, with expert discussions to be held in the next two weeks, and a joint statement prepared in the following week, i.e. a timetable totalling six weeks. This timescale was criticised by Quinn Emanuel, after which the applicants suggested that this timetable "can be expanded to give the Claimants the time they believe they need to instruct an appropriate expert" (see the fifth witness statement of Avi Pawar ("Pawar 5"), paragraph 13). They have also suggested that it is sufficient for the Claimants' expert to produce a report "by the end of January" (see Pawar 6, paragraph 5).

45. As I have already indicated, the first day of trial is now 12 February 2026, with reading commencing on 9 February 2026. I will be giving directions as to when Skeleton Arguments should be lodged in the context of the revised trial date. Delay in seeking permission

46. There is no doubt that the Expert Evidence Application is late, and no satisfactory explanation has been given as to why it was not made earlier, given that it appears to have had many months in its gestation. I address in due course the chronology of events.

47. An apology has been given for the delay, and having considered the evidence before me, I accept that that delay was not deliberate. It has been suggested that a tactical decision has been made to progress the evidence in secret and spring it upon the Claimants at the last minute. I do not consider that that is a fair characterisation of events as I address below in relation to the chronology of events. It appears to me that the perceived need for such evidence was not made as early as it might have been, and it has subsequently taken time to progress, with the Defendants waiting until they have the report before providing it to the Claimants.

48. The Claimants submit that the delay is relevant in two senses. First, it is said that it indicates that the expert evidence which is sought is not necessary, because it would otherwise have been sought at an earlier stage; and secondly, that the expert evidence is not reasonably required, given what is said as to the adverse impact of allowing further expert evidence on the Claimants' trial preparations and the maintenance of the trial date.

49. I am not convinced that the first sense necessarily follows. It is necessary to examine whether the expert evidence is necessary, independently of the question of when the application was made. Put another way, just because an application is made late does not mean that an application is not necessary. Equally, as shall be seen, I do not consider that with appropriate directions, the trial date would be imperilled, though it would be one more matter to be dealt with prior to trial.

50. The relevant background to the expert evidence application is set out in detail in Gerbi 4 at paragraphs 9-23 and was elaborated upon in oral submissions before me today. In summary: (a) The question of whether Mr Wilson provided Mr Burton with access to his personal Google Drive in late August 2021, was pleaded at paragraph 23(5) of the Particulars of Claim, to which Mr Wilson's defence, dated 5 March 2024, responded at paragraph 28(e). However, the email of 30 August 2021, which records Mr Wilson's log-in details on which so much reliance is now placed by the Claimant, was neither pleaded nor even disclosed at this time, and indeed it is one of the documents within the part PD 57AD Application. As Mr Khangure KC made clear in the course of his oral submissions, if the Court does give permission for the Claimant to rely upon it in due course on the further applications before me today, his clients will serve a notice to prove authentication, such notice therefore not being late, given that the Claimants do not at present have any permission to rely upon the document itself. (b) The messages themselves were disclosed on 1 November 2024 as part of a batch of 86 documents obtained from the Gambling Commission. They were not pleaded at that time, though the parties did have time to consider them, one assumes, before the CMC on 5 December 2024. No issue was taken as to authenticity at that time, or indeed any need for expert evidence in relation thereto. (c) On 1 May 2025, the Claimants provided draft Re-Amended Particulars of Claim, which expressly pleaded the messages, and the Defendants consented to those amendments (see paragraphs 67(3)-(9) of the Re-Re-Re-amended Particulars of Claim. Accordingly, it was only from May 2025 that the messages were actually pleaded by the Claimants. As I shall return to, it appears, therefore, that the Claimants then themselves considered that there should be an express pleading in which they pleaded the messages as part of the statements of case. (d) On 11 June 2025, Mr Wilson responded to the Re-Amended Particulars of Claim by denying that the messages were authentic (see paragraphs 83E(b), 83F, 83G(b), and 83H of the First Defendant's Re-Re-Re-Amended Defence). The authenticity of the messages was therefore very much in play from this stage, and it will be a matter that the trial judge will have to grapple with and determine at trial. It appears that the pleas advanced in such Re-Re-Amended Defence followed preliminary discussions with Mr Shields on 10 and 11 June 2025. (e) There was a Reply to the Re-Amended Particulars of Claim on 25 June 2025, but that reply did not plead back to paragraph 83. As I raised during the course of oral submissions, I considered that the Claimants should plead back to paragraph 83. Mr Atrill KC indicated the Claimants can do so by 4.30 pm on 24 December 2025, and I direct that they should do so. (f) On 7 August 2025, in response to request for information by the Claimants, Mr Wilson alleged that the messages were forgeries and that the metadata had been manipulated. On 8 August 2025, Mr Wilson served a notice to prove the authenticity of the messages pursuant to CPR 32.19 as I have already noted. (g) Also on 8 August 2025, Mr Wilson served his first trial witness statement. At paragraphs 63-65 he sought to give what is properly characterised as expert evidence in relation to the possibility of altering the metadata of WhatsApp messages and foreshadowed the possibility of expert evidence. Such evidence therefore went to Scenario 2. In response, on 18 August 2025, Quinn Emanuel wrote to Aspect Law, noting that the relevant part of Mr Wilson's witness statement was inadmissible as expert rather than factual evidence, noted Mr Wilson's reference to the possibility of expert evidence and stated (rightly) that the Court's permission would be required to rely on any further expert evidence. (h) On 4 September 2025, Mr Wilson provided a redacted version of his first witness statement in which the relevant paragraph had been redacted.

51. Standing back, it is clear from the above that it was only in May 2025 that the messages concerned were actually pleaded by the Claimants, and by virtue of the fact that the amendments were made by the Claimants, they clearly considered that they should be pleaded. The Defendants pleaded back promptly in June 2025, and took the points as to authenticity. By August 2025, not only was it clear that the trial would include issues as to whether the messages were authentic or had been forged, but Mr Wilson had sought to introduce expert evidence on the matter through his own evidence, and the Claimants had made clear that the Court's permission would be required to adduce any expert evidence on the matter.

52. It would have been better if notice to prove the authenticity of the messages pursuant to CPR 32.19 had been served earlier than 8 August (the last day for service of such a notice, which was also the date for exchange of factual witness statements). Such notice itself followed a reminder of the need to do so from the Claimants. In this regard, the Commercial Court Guide provides at E4.1 that such a notice should normally be served well before the deadline for witness statements, especially where witness evidence is likely to be required to address features of the relevant documents.

53. However, the reality is that a consequence of that notice, which was served in time, and is effective, when coupled with the pleas in the Re-Amended Defence, is that it is inevitable that the authenticity of the messages, and whether they were forgeries, is an issue for trial, that the parties will have to address at trial, and which the judge will have to grapple with and determine at trial. Yet further, and given the reliance that is now placed by the Claimants on the 30 August 2021 email, if it is admitted, its authenticity will also be required to be proved and will also need to be addressed by the trial judge and the issue determined.

54. It is clear that the Defendants recognise what they perceive to be a need for expert evidence as on 20 and 28 August 2025, Aspect Law had instructed Mr Shields to prepare the Shields Report. It was then eight weeks before Mr Wilson served the Shields Report on the Claimants on 31 October 2025. Again, it would have been better had the Defendants foreshadowed that such evidence was being commissioned, and that if objected to, permission of the Court would be sought.

55. In the event, however, the Claimants have now had the Shields Report for over three months before trial. Mr Atrill KC confirmed that they took instructions from their own existing expert at Kroll, soon after it was served, as to whether he would be in a position to respond, and he confirmed in affirmatory terms that he would be able to do so, and by the end of January. Necessity

56. I turn next to the question of whether it is necessary for there to be expert evidence on the matters addressed by Mr Shields, and if not, whether in the context of the proceedings as a whole, expert evidence on that issue is reasonably required to resolve the proceedings.

57. The authenticity of the messages is relevant to the issues of whether the RSM Audit Fraud occurred, and the nature and extent of Mr Wilson's knowledge and involvement in the RSM Fraud (see Issues 3 and 4 in the List of Issues). As already has been noted, the trial judge will inevitably have to address such matters and grapple with the authenticity or otherwise of the messages. I do consider that it is necessary for there to be expert evidence on Scenario 2, as addressed by Mr Shields. Even were that not so, I consider that in the context of the proceedings as a whole, expert evidence on that issue is reasonably required to resolve the proceedings.

58. It is an important, if not a central issue, as to whether the messages were authentic or were forged in the context of what is high value litigation, and it raises issues on which expert evidence is necessary, for the judge to form a sound judgment (see the RBS Rights Litigation at paragraph 17).

59. It is right, as is identified in Gerbi 4 at paragraphs 43-44, that the messages are far from the only evidence which goes to those issues. But I consider that the trial judge is likely not only to be assisted by having such evidence before him in Scenario 2, but that he will need to have such evidence to determine the issues that arise. Even if that were not so, such evidence is, I am satisfied, reasonably required.

60. In this regard, the relevant context includes Mr Wilson's pleading on the fabrication of the Messages. Initially on 11 June 2025, Mr Wilson denied that the messages are "authentic". This prompted Request for \Further Information from the Claimants, who suggested that it was inappropriate for Mr Wilson to advance (what they characterised to be) a covert and unpleaded case of forgery against Mr Burton. In response on 7 August 2025, Mr Wilson pleaded as follows: "Mr Wilson's case is that each of the WhatsApp messages and text message ... are forgeries. For the avoidance of doubt, it is also Mr Wilson's case that the metadata on each of the screenshots is likely to have been manipulated to show data contemporaneous with the RSM Audit. Mr Wilson ... infers from their source and their recent production in litigation that the documents are likely to have been forged by Mr Burton or someone on his behalf."

61. As already noted, Mr Wilson also served a notice to prove documents including the messages the following day (the deadline for witness statements). The notice required the Claimants to prove the date upon which the messages were created, "it being the First Defendant's case that the document has been created at a later date than it purports to have been made".

62. In Wilson 1, served on 8 August 2025, Mr Wilson denied sending or receiving the WhatsApp or Telegram messages, suggested that they (as well as other documents) had been fabricated by Mr Burton, and as noted above, inappropriately sought to give expert evidence on the possibility that the WhatsApp messages "can be falsely created and backdated" (see paragraphs 63-69). Those suggestions were addressed and rejected in Burton 2 at paragraphs 17-28.

63. It is apparent that Mr Wilson does not allege that Mr Burton fabricated the Messages contemporaneously in August 2021 (i.e. Mr Shields Scenario 1), but the pleadings appear to be that he did so subsequently and manipulated their metadata to show dates contemporaneous with the RSM Audit (i.e. Mr Shields, Scenario 2).

64. In such circumstances, Scenario 1 does not appear to be in play, and I do not consider that it needs to be addressed in expert evidence. However, as envisaged at the hearing, before me today, such evidence would not appear to be controversial, unless it proved to be of any relevance, contrary to the view that I have expressed, it appears that agreement on it can be reached between the solicitors through an exchange of correspondence between the Defendants' solicitors and the Claimants' solicitors which can no doubt take place.

65. Turning to Scenario 2, the Claimants submit there are difficulties that the Defendants face in advancing their case based on Scenario 2.

66. In relation to Scenario 2 (fabrication after August 2021), the Claimants submit that that scenario is inconsistent with the contemporaneous documents. As explained, in Gerbi 4, paragraphs 39-41, Mr Burton on 30 August 2021 copied a WhatsApp message of that date, which contained the log-in details to Mr Wilson's Google Drive, into an email to himself. The Claimants submit it is impossible for Mr Burton to have copied the WhatsApp messages into this email unless the relevant messages were created before that date. They say it follows that Scenario 2 simply cannot have occurred.

67. However, as already noted, that message is not yet pleaded, and indeed, it forms one of the documents the subject matter of the PD 57AD Application. If it is admitted, the Defendants have made clear they will serve a notice to prove. The 30 August 2021 email therefore is not, at the present time, a bar to the application of Scenario 2, and the authenticity of that document will in any event need to be determined at trial if the document is admitted and if the notice to prove is served.

68. It is also submitted that, contrary to the implication of Mr Wilson's pleading – the messages cannot have been fabricated for the purposes of these proceedings, which commenced in late 2023. It is said that this is clear from an email dated 12 January 2022, by which Mr Burton sent himself the screenshots of the Messages, and he said also from the Shields Report itself. That states at paragraphs 51-63 that the messages used a version of WhatsApp which became unavailable on 12 February 2022, and a version of Telegram which was superseded on 19 September 2021, and became unavailable "a set number of months" after that date (Mr Shields is unable to say how many months). Mr Shields states he was able to revert to an older version of WhatsApp by disconnecting and then reconnecting the device from the internet, but was not able to revert to the older version of Telegram (see paragraphs 115-117 and 129-133).

69. The Claimants submit that in such circumstances, the messages could not have been fabricated for the purpose of these proceedings.

70. The Claimants also make other points, including that the Shields Report does not address the metadata, notwithstanding this was seemingly referred to in their original instructions and in the notice to prove. Mr Atrill KC characterises that the current state of the evidence and associated pleadings is "a mess".

71. The applicant's response to these points is that they are points for submission and cross-examination at trial. It may well be that the points raised by the Claimants above are good ones and they may well find traction at trial. However, it is clear that the Court will have to grapple with the issues as to authenticity and forgery at the trial, and the Defendants' pleaded case, and I do not consider it is appropriate to opine on them or indeed express any concluded views in relation to them at this time. All such matters are matters to be developed and ruled upon at trial.

72. Placing myself in the shoes of the trial judge, I consider it will be necessary for there to be expert evidence on Scenario 2 as addressed by Mr Shields. However, even if that were not the case, I do consider that in the context of the proceedings as a whole, expert evidence on that issue is reasonably required to resolve the proceedings – these are matters that require expert evidence.

73. I have taken into account the timing of the application. As I have already foreshadowed, there has undoubtedly been delay, but I do not consider it is proper to characterise that delay as dating back, as has been sought to be done to 2024. As is apparent from the chronology, it was only in May 2025 that these documents were pleaded. They were promptly responded back to in June 2025, and therefore to the extent that there has been delay, such delay relates to matters that have subsequently occurred. In fact, the reality is that it has taken time for the expert evidence to be prepared, and as soon as it was clear that that expert evidence was going to be objected to, the application was listed. The time period from then to now is explainable on the basis that the Court fixed all the applications to be heard on the PTR, which is the most convenient time at which to deal with all such trial management matters, including that related to expert evidence.

74. In such circumstances, while I have taken into account the delay, I do not consider that that, in of itself, is a factor which determines, or indeed substantially weighs against, the granting of the application.

75. I am also satisfied that the Claimants will be able to address such evidence, and provide expert responsive evidence, in advance of the trial, and I do not consider that they will suffer any real prejudice in their trial preparation in doing so. Much of the work will be done by the experts themselves, and I consider that the overriding objective is very much in favour of the trial judge having before them all evidence, including expert evidence, that will allow him or her to determine Issues 3 and 4.

76. I am also satisfied that this will not jeopardise the trial date, and that oral expert evidence can be accommodated within the existing trial estimate, and within the trial timetable that I propose to finalise. There is ample time between the existing expert evidence and oral closing submissions (currently there are some 12 days allowed for preparation of written closings in advance of oral closings). It may be in any event that the experts will agree matters in that regard. I note that there has already been cooperation, as one would expect, between experts on other disciplines, including in relation to an existing report provided by Kroll, as a result of which in that other area, there will not be any need for expert oral evidence.

77. It may be the case that that will also transpire to be the position in relation to this expert evidence, not least given that the evidence ultimately goes to methodology, and in those circumstances, it may well be that there is a degree, if not a large degree, of common ground between the two experts. Even if that is not so, as I say, I am satisfied that such evidence can be accommodated within the trial, and without prejudice to either party.

78. In this regard, I also note that there are large counsel teams on each side, and this Court encourages parties, their solicitors and counsel, to divide up responsibility between different members of the counsel team, which also has the advantage of providing opportunities for junior counsel to deal with both written and oral advocacy. It is therefore possible, although this is ultimately a matter for the Claimants, that, for example, this aspect of expert evidence could be allocated, to the junior instructed on behalf of the Claimants.

79. I also bear in mind that it will be the Claimants' witnesses that are heard first, and the initial burden, therefore, of cross-examination preparation will be upon the Defendants, not the Claimants.

80. Accordingly, and for all the above reasons, I accede to the Expert Evidence Application so far as it relates to Scenario 2 within Mr Shields' Report, and I will direct that the Claimants' expert provides responsive expert evidence by the end of January. I will address such further directions as are appropriate in the context of my trial management directions in due course. D. The PD 57AD Application D.1. Relevant Legal Principles

81. Paragraph 12.5 of PD 57AD provides: "A party may not without the permission of the Court or agreement of the parties rely on any document in its control that it has not disclosed at the time required for Extended Disclosure (or within 60 days after the first case management conference in a case where there will be no Extended Disclosure). For the avoidance of doubt the party and its legal representatives remain under the duties under paragraph 3.1 (the Disclosure Duties) and 3.2 above. The effect of this rule is that the party which has in its control a document on the date for extended disclosure (or within 60 days) after the first CMC but does not disclose that document on that date requires the consent of the other parties or, failing that, the Court's permission to apply on that document."

82. The purpose of that rule is to encourage prompt and sufficient disclosure. D.2. Application to this case

83. The issue that arises is whether or not the Claimants have disclosed documents which were in their control on the date for extended disclosure following that deadline. In particular, it is said that they have relied upon documentation provided by Mr Burton to which they need to apply for permission. However, it is important to bear in mind what Practice Direction 57AD paragraph 12 is concerned with.

84. Paragraph 12 is headed "Complying with an order for Extended Disclosure". In relation to paragraph 12.5, as quoted above, it is clear that that rule is dealing with the situation of documents where the party had those documents in their possession at the time of extended disclosure, but did not disclose them.

85. In fact in the Skeleton Argument for this hearing, the First and Third Defendants provided, amongst other matters as follows: "19. Cs apply pursuant to paragraph 12.5 of PD57AD for permission to rely upon documents disclosed after the Extended Disclosure deadline (21.02.25). D1 and D3's position is as set out in Aspect Law's letter of 11.12.25, namely that they are content to consent to this application as long as Cs identify when Mr Burton provided (or otherwise they came into Cs hands) document productions..."

86. Then four document productions are identified. "For the avoidance of doubt, therefore, D1 and D3 do not contest the application, are content for Cs to obtain permission to rely upon all of the documents disclosed but invite the Court to direct that Cs clarify the position as requested in Aspect Law's letter."

87. However, as Mr Atrill KC pointed out during the course of his oral submissions, and as is clear from the language of paragraph 12.5, that rule does not relate to documents which were not in the parties' possession at the time of extended disclosure. In fact, in relation to these categories of documents, they have been subsequently provided by Mr Burton.

88. In such circumstances, it is now common ground between the Claimants and the First and Third Defendants that in fact there is no necessity for an order, as is sought on the PD 57AD Application, because the Claimants are entitled to rely on those documents, because they only came into their control after the date for extended disclosure.

89. In those circumstances, I consider that the appropriate order to make, as will be reflected in the overall Order that is drawn up at the end of the PTR, is that the Claimants are at liberty to rely upon the documents, the subject matter of the PD 57AD Application. But there was no necessity for that application, and it stands to be dismissed, which I do. E. The Burton 3 application

90. The Claimants seek permission to rely at trial on Burton 3 as amended. The position of the Claimants is that these paragraphs clarify certain evidence contained in Burton 1 about the precise dates of his communication with RSM, responsive to points raised by the Defendants. The Claimants' position is that they could have left this to come out in cross-examination, but not only would it save time and costs for the evidence to be clarified now, but also it will be of material assistance and benefit to the parties and to the trial judge for the ambit of the evidence to be clearly defined in advance of trial and in advance of cross-examination.

91. The First and Third Defendants have taken the realistic stance on this hearing that ultimately it is a matter for the Court to satisfy itself (this being a case where relief from sanctions is necessary pursuant to CPR 3.8 and 3.9), that relief from sanctions is appropriate applying the three-stage test in Denton v TH White Ltd [2014] EWCA Civ 906 ; [2014] 1 W.L.R. 3926 . That is, if I may say so, a realistic approach to take, and one which this Court would endorse in the context of ensuring that all relevant information is before the Court.

92. I will address the requirements in relation to relief from sanctions in Denton v TH White Ltd in a moment, but I would say at the outset that it is clear that the relevant paragraphs of Burton 3 are doing no more than clarifying matters, and arise out of queries raised by particular Defendants, and therefore notwithstanding the fact that such evidence is late, and after the deadline for service of factual witness statements, there is clear sense, as part of the overriding objective, in ensuring that all relevant evidence is before the Court, that that matter is clarified in writing in the witness evidence at the earliest possible stage.

93. Turning then to the well-known three-stage test in Denton v TH White Ltd , the Court considers (i) whether the default is serious and significant; and then (depending on the answer to (i)), (ii) why the default occurred; and (iii) all the circumstances of the case including in particular the factors set out in CPR 3.9(1)(a)-(b).

94. I remind myself that CPR 3.9 provides as follows: "3.9(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or Court order, the Court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need – (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders."

95. CPR 3.9(2) also provides "an application for relief must be supported by evidence", as it has been.

96. Turning to those three matters, firstly, whether the default is serious and significant.

97. Whilst it is right that a significant period of time has passed, I do not consider that the breach was a serious or significant breach.

98. In circumstances where, as is clearly made out on the evidence before me, the purpose of that evidence was to respond to requests for information as to the points in time that Mr Burton had contact in December, and in particular, the issue being whether or not that was before the Settlement Deed on 14 December or not, and Burton 3 clarifies the position that it was after 14 December.

99. Whilst, therefore, such evidence comes after the deadline, there has been a breach and relief from sanctions is required, I do not consider that that default was serious and significant.

100. That being my conclusion, it is strictly unnecessary for me to proceed to the second and third stage of Denton v TH White Ltd , but for completeness, while the default occurred, I am satisfied it was in the context of good reasons to clarify the existing evidence that had been given, and consequent upon requests that had been made; and having regard to all the circumstances of the case, including those which I have identified from CPR 3.9(1)(a) and (b), this is a case where I am satisfied that there should be relief from sanctions, and accordingly I do grant permission for the Claimants to rely at trial on paragraphs 25 to 34 of Burton 3 as amended. F. Video Link Application

101. The Claimants seek an order that Mr Burton is permitted to give evidence remotely via video link evidence in Quinn Emanuel's offices in Zurich, Switzerland. The specifics of the proposed arrangements and their legal permissibility in Switzerland are addressed in a memorandum prepared by the Claimants pursuant to H.4.2 of the Commercial Court Guide.

102. Suffice it to say that, at the time the trial will take place, it is possible for video link evidence to be given from Zurich and, in addition, no points are taken in relation to those arrangements, subject to the fact that it is said that, if I was minded to grant the Video Link Application, representatives of both Mr and Mrs Wilson should attend in order to ensure that matters are conducted properly. If I were minded to make a Video Link Application from Switzerland, clearly it would be appropriate to have such measures in place.

103. In support of the application for Mr Burton to give evidence by video link from Zurich, Mr Burton, in Burton 3, has set out what his concerns are were he to give evidence from England.

104. Before I get to that, I should note certain preliminary points. Firstly, Mr Burton is a third party. He is not employed by or associated with the Claimants. If he gives evidence, he is not being paid to give his evidence. He is currently out of the jurisdiction at a location which he is not willing to reveal to the Defendants. More than that, he has left the jurisdiction because of what he perceives, subjectively, to be threats from Mr Wilson. So extreme is his concern in that regard that he has not even told members of his family what country he is in.

105. Being overseas, of course, he is also not a compellable witness. Therefore, if the circumstances are that he is not willing to give evidence other than in Switzerland and the Court accepts that evidence, then the reality is he will not be cross-examined on his evidence. No doubt his evidence could be put in under the Civil Evidence Act but he would not be cross-examined in those circumstances and whilst the Defendants would have the opportunity to make submissions on weight to be attached to his evidence, they would not have had the opportunity to cross-examine him. That is in circumstances where, as will be apparent from the remainder of my judgment, Mr Burton is an important witness, if not the star witness, for the Claimants and, ultimately, it is his word particularly against Mrs Wilson as to whether she had knowledge of the alleged fraud, and his evidence is also important in relation to the case and defence of Mr Wilson as well.

106. In Burton 3, Mr Burton states, amongst other matters, as follows, at paragraphs 16 and following: "I have concerns about giving evidence in person, in Simon's presence [Mr Wilson], given Simon's past behaviour toward me and my relationship with him, the impact of Simon's past behaviour on my life and well-being, and the potential for cross-examination about my interactions with Simon and the harassment by Simon.

17. I have had very unpleasant interactions with Simon, who has made physical threats towards me. As stated in paragraphs 66 and 67 of my First Witness Statement, on 10 January 2022 Simon told me at RPL's offices that he was 'going to fucking smash my face in', and menaced me with a chair, saying he would 'fucking throw this chair to split my head'. This caused me to fear for my personal safety (and also caused distress to other members of RPL's staff). Simon was a successful amateur boxer. As stated at paragraphs 88 and 91 of my First Witness Statement, on 4 September 2022, he forced me to send an email retracting my whistleblowing allegations telling me that if I wanted to get out the Cornbow Shopping Centre without being hurt I had to send that email. This incident left me shaking and unable to drive immediately after it.

18. Simon has subjected me and others close to me to a campaign of harassment and intimidation involving sending threatening WhatsApp messages, overflying my house, causing my home to be photographed, bringing the private prosecution and threatening legal proceedings against Nicola, my former PA. I have described these matters in detail in paragraphs 98 to 106 and 110 to 113 of my First Witness Statement and paragraphs 54 to 58 of my Second Witness Statement.

19. Based on my experience of Simon, he holds grudges and is willing to resort to violence if he does not get his way. Simon is a man of considerable means, and I have no doubt that he is capable of getting to me (personally or through others) if he knows my location, especially if that location is in the UK but also if it is abroad: that is why I have gone to such lengths to keep my current whereabouts private. For example, I am aware from speaking to Caroline at the time that Simon sent two men (who I now understand from Gerbi 2 were masked and wearing baseball caps) to intimidate Caroline's elderly parents in Taiwan. I also believe that he has the motivation to get to me, based on his previous behaviour, and because the evidence which I intend to give to the Court reflects very poorly on him and because there is a lot of money at stake.

20. Without waiver of privilege, I understand from Quinn Emanuel that the Court may put in place special measures to facilitate a vulnerable witness giving evidence in person, including preventing parties from seeing the witness by the use of screens, arranging that the witness enters and leaves the Court room through a separate door and/or accompanied by Court security, and permitting the witness to enter the Court room before and leave it after the remaining trial participants. I am not willing to be in the same room or building as Simon, and no such special measures would provide me with sufficient comfort. If I am required to attend Court in person, then I will not attend to give evidence. Although I did attend the hearing in the Magistrates' Court, that caused me significant anxiety even though Simon was not there in person and I was not giving evidence against him. "21. Without waiver of privilege, I understand from Quinn Emanuel that the Court may permit me to give evidence remotely, via video link, but that any such arrangement would involve informing the Defendants and the Court of the location from which I intend to give evidence. The thought of giving evidence from a location known to Simon (or which could possibly become known to Simon) causes me significant anxiety, and I am not willing to give evidence remotely from a location in the UK, where I believe I would be at considerable risk from Simon. If I am required to do so, then I will decline to give evidence . However, if suitable arrangements can be made to protect me for interference by Simon, I would be willing to give evidence remotely from a country which is neither the UK nor the country where I reside, and to which I would travel for the sole purpose of giving evidence remotely. "22. I wish to make clear that I remain willing to give evidence at trial if suitable arrangements can be made, and that I am prepared to be cross-examined on behalf of the Defendants and answer any questions which the Court may have, notwithstanding my concerns about Simon and his past behaviour towards me. I have no interest in imposing unnecessary conditions in relation to the arrangements for my oral evidence at trial on the parties or the Court. I understand that the default position is for me to attend Court to give evidence in person and that the Court may decide that any other arrangement is not appropriate in this case. However, while I wish to assist the Court, my overriding concern is for my personal safety, which I am not willing to jeopardise ." (Emphasis added)

107. I am not in a position to go behind Mr Burton's concerns on what is an interlocutory matter. In any event, it is clear (and this is relevant to the test I have to apply) that subjectively Mr Burton does have fears for his safety. That evidence was accepted by another judge of this Court, His Honour Judge Pelling, at a previous hearing, where the issue was whether or not Mr Burton was entitled to not give his address.

108. Furthermore, Mrs Wilson, through their counsel, Mr John, accepts that the concerns that Mr Burton has, and the fears for his safety are, as Mr John put it, real. The background to that is that it is the position of Mrs Wilson from her own personal experience that she herself has allegedly suffered harassment from Mr Wilson in the past, Mr and Mrs Wilson now being divorced, and in such circumstances can well understand why Mr Burton himself feels that he has fears for his safety.

109. It will be seen (and I consider it to be clear from the paragraphs of Burton 3 that I have cited and the passages from those paragraphs that I have highlighted) that Mr Burton is unequivocal that, if he is required to attend Court in person, then he will not attend to give evidence. In those paragraphs he addresses many of the measures, in terms of special measures, which are proposed and offered by Mrs Wilson and adopted by the Mr Wilson and RPL.

110. However, matters do not rest with Burton 3. During the course of the oral hearing, which has taken place over two days now, and in the course of the oral submissions of the parties, I enquired whether or not Mr Wilson would be willing to give any undertaking supported by a penal notice going beyond the matters which have been canvassed by way of special measures.

111. During the course of this morning's hearing, Mr Khangure KC, on behalf of Mr Wilson, has proffered undertakings that he would be willing to give personally, which would be along the following lines, after a penal notice in the usual terms, such as: "(a) Mr Wilson will not, whether by himself, directly or indirectly or by any servant or agent, attempt to contact, speak to or otherwise approach Mr Burton; (b) Mr Wilson will not seek to have anyone else contact Mr Burton save for his lawyers; (c) Mr Wilson will not take any steps to have Mr Burton followed from Court or otherwise attempt by himself or by any servant or agent, directly or indirectly, or seek to threaten or harass or to threaten or harass Mr Burton either verbally or physically. During the days in which Mr Burton is called to give his evidence in person at the Court, Mr Wilson will not attend the Rolls Building, 7 Rolls Building, Fetter Lane, London, EC4A 1NL. It would be provided that Mr Wilson will be bound by these promises until 30 March 2026. The Court explained to Mr Wilson the meaning of his undertaking and the consequences of failing to keep his promises."

112. Those potential undertakings were only provided in draft form to Mr Atrill KC, acting on behalf of Mr Burton, in the latter half of this morning. During the short adjournment, before lunch, I indicated that I required Mr Atrill KC to attempt to obtain input from Mr Burton in relation to whether his position as expressed in Burton 3 would remain the same or would change if I was minded to seek such undertakings from the Mr Wilson.

113. After the short adjournment, Mr Atrill KC confirmed that he had been able to get in contact with Mr Burton but Mr Burton expressed himself in clear terms that even such an undertaking would not cause him to attend in England and would not ameliorate those fears that he has for his safety, given what he perceives to be, rightly or wrongly, a history of threats and criminal conduct on the part of Mr Wilson in relation to him.

114. The evidence before me, therefore, from Mr Burton is that, if the Court were to refuse an order that he give evidence by video link from Zurich such that he would have to give evidence, if at all, from England, his evidence is unequivocally that he would not attend in England to give such evidence. It follows that, if that evidence is accepted and on an interlocutory application there is no basis for me to go behind that, the consequence would be that Mr Burton would not give evidence for the Claimants, in terms of oral evidence, and he would not be cross-examined. In circumstances where he is the "star witness" for the Claimants and that the allegations in relation to fraud and knowledge of both Mr and Mrs Wilson relate substantially to his evidence, that would clearly have a substantial detrimental effect on the Claimants' case.

115. I will return to such matters in due course, after I have identified the relevant principles. F.1 The Applicable Principles

116. CPR 32.3 provides that, "the court may allow a witness to give evidence through a video link or by other means." The test to be applied is whether such an order is "for a good reason and serves a legitimate aim" (see Three Mile Inn Ltd v Daley [2012] EWCA Civ 970 at [12] (Kitchin LJ)).

117. When considering whether to order video link evidence, the Court must consider whether its use will be likely to be beneficial to the efficient, fair and economical disposal of the litigation, bearing in mind that remote evidence is not as ideal as having the witness physically present in Court (see paragraph 2 of Annex 3 to PD 32). In that regard, the Court will consider whether the factors pointing in favour of ordering video link evidence outweigh any detriment to the other parties from being required to cross-examine the witnesses remotely.

118. All the parties referred me to my summary of the principles which are set out in Deutsche Bank AG v Sebastian Holdings Inc [2023] EWHC 2234 (Comm) ; [2023] 4 WLR 73 at [44] – [54]: "44. I turn next to the applicable legal principles. Under CPR 32.3, which is a case management power, the Court has discretion to allow a witness to give evidence "through a video link or by other means". In exercising that discretion, I am satisfied that a number of general principles arise.

45. The first of those is that a direction permitting a person to give evidence by video link may only be made where it is " for a good reason and serves a legitimate aim " . Authority for this proposition, which was not contested on behalf of Mr Vik, comes from the Court of Appeal's decision in Three Mile Inn Ltd (formerly Rivergrant Ltd) v Daley (Liquidator of New Northumbria Hotel Ltd) [2012] EWCA Civ 970 . At [12] Kitchin LJ, with whom Aikens LJ agreed, stated, amongst other matters, as follows: "It is, in my view, incumbent on the Court to ensure that such a directive is made for a good reason and serves a legitimate aim ..."

46. I am satisfied that the requirement of a good reason and that for evidence to be given by video link must serve a legitimate aim and remains the applicable test and remains good law, notwithstanding Mr Matthews' valiant attempts to say that the world had moved on since the views of the Court of Appeal in Three Mile Inn , in particular in a post-COVID pandemic environment.

47. The lie to that submission can be seen, apart from anything else, from Annex 3 to Practice Direction 32, which is the current applicable guidance. Paragraph 2 is as follows: "VCF may be a convenient way of dealing with any part of proceedings: it can involve considerable savings in time and cost. Its use for the taking of evidence from overseas witnesses will, in particular, be likely to achieve a material saving of costs. Such savings may also may be achieved by its use for taking domestic evidence . It is, however, inevitably not as ideal as having the witness physically present in court. Its convenience should not therefore be allowed to dictate its use. A judgment must be made in every case in which the use of a VCF is being considered, not only as to whether it will achieve an overall cost saving, but as to whether its use will be likely to be beneficial to the efficient, fair and economic disposal of the litigation. In particular, it needs to be recognised that the degree of control a court can exercise over a witness at the remote side is or may be more limited than it can exercise over a witness physically before it ." (Emphasis added)

48. I am satisfied that Annex 3 to Practice Direction 32 continues to be the applicable guidance, and that it remains to be recognised that video conference evidence is inevitably not as ideal as having the witness physically present in Court and that its convenience should not be allowed to dictate its use, and that it needs to be recognised that the degree of control that a Court can exercise over a witness at a remote site is or may be more limited than it can exercise over a witness physically before it. In such circumstances good reasons must still be demonstrated before it is ordered.

49. It is of course right, and well-known, that video link evidence is extensively used (and indeed the Commercial Court was a pioneer in that regard well before the pandemic). In this regard, Mr Matthews in his skeleton argument has drawn to my attention various authorities in relation to evidence being given by video link including, for example, Freeman v Pennine Acute Hospitals NHS Trust [2021] EWCA 3378 QB and in particular what was stated at [11].

50. I have also been referred to the Administrative Court case of The Crown (on the application of Arman) v the Secretary of State for the Home Department , a decision of Mostyn J, [2021] EWHC 1217 (Admin) , and what he stated in that case in relation to remote evidence that: "The widely held misconception that this is unsatisfactory or in some way renders the task of the judge, in sifting truth from untruth, more difficult is being gradually displaced through wide experience. "

51. There is no doubt that video link can be of assistance in suitable cases but the position remains that permission is needed for evidence to be given by video link and good reason must be shown as to why evidence should be given by this method. The position is a fortiori where a witness is an important witness in a trial especially where serious allegations are being made against them, whilst in the present case we are concerned with an admitted condemnor who has found to have lied on oath on repeated occasions. Mr Matthews was unable to identify any authority where good reason had been demonstrated for evidence to be given by live link." (Emphasis added)

119. That was a case in which Mr Vik was in contempt and he was essentially refusing to attend in London to give evidence and was saying that he would not attend to give evidence in London if a video link was not provided for him. That was a case in which he was therefore effectively holding a gun to the head of the Court and employing the sword of Damocles, and that conduct was conduct which this Court would not endorse or support. That is consistent with what was said by Miles J in Business Mortgage Finance Plc and others v Rizwan Hussain [2022] EWHC 353 (Ch) , in particular at [35].

120. I echoed those sentiments at [81] of my judgment, where I said: "81. …Mr Vik is a contemnor. He is also someone whose evidence has been repeatedly disbelieved. He is also someone who has been ordered to pay indemnity costs on many occasions. And as in that case, it seems to me that the bank is entitled to regard cross-examination over a video link as unsatisfactory. I reject the suggestion that the world has moved on since 2014, when Andrew Smith J expressed such sentiments, not least given the terms of Annex 3 to Practice Direction 32 at [2], which I have already cited. The mere fact that video link evidence is regularly used in proceedings in the Commercial Court and in other divisions of the High Court and that judges have expressed sentiments about the utility of such procedures does not begin to grapple with the situation in a case such as the present and those authorities that have been identified before me, and which I have quoted in the context of an admitted contemnor with a suspended custodial order with terms to be complied with, including attending at Court…"

121. After concluding at [93] that "good reason has not been shown on behalf of Mr Vik, for Mr Vik to attend the Further Examination by video link nor has it been demonstrated that such a course would serve a legitimate aim…", I then said as follows at [98]: "The circumstances are that the Further Examination forms part of a detailed set of conditions imposed by the existing Committal Order by which Mr Vik's term of committal was suspended. I am satisfied that the Court's ability to be in control of Mr Vik's evidence, and the likelihood of the truth and accuracy of his evidence being properly tested will be greatest if Mr Vik attends in person. I am also satisfied that it would be wrong to expose DBAG to the risks inherent in Mr Vik giving evidence remotely. Whilst it is true that the video link proposals in the protocol are appropriate steps to take if video link evidence was appropriate, there can be no guarantee that there would not be difficulties arising from the technology during the two days of the Further Examination. Experience shows that notwithstanding the advances in technology over the years, there can still be problems with bandwidth and there can still be time lags, however short. Counsel, particularly enthusiastic Counsel, often ask questions quickly, and on occasions over speak a witness over a video link where the same is not true, or is less likely to occur, when the witness is in person. Witnesses on occasions find the experience more difficult over a video link with a degree of disconnect that is not there when everyone is in person. As is reflected in the Practice Direction (as already quoted above), remote evidence is inevitably not as ideal as having the witness physically in the Court and equally the degree of control the Court can exercise at a remote site is more limited than it can exercise over a witness physically present before it. "

122. Whilst the observations made at [98] are general in their nature and such problems can still apply, as reflects my own experience, and as reflected in other authorities to which I shall come, video link evidence is regularly given, and given successfully, without those problems coming to fruition.

123. The second point, which is also important in the context of the order I made in that case, is that that case was a very different case to the present one, where Mr Vik was a contemnor and in circumstances where he was indeed holding a gun to the head. That is a very different situation to someone who is admitted to be a vulnerable witness and subjectively fears for his safety.

124. In terms of the advantages of witnesses giving evidence in person as opposed to over a link, it is also fair to say that the Courts have said that demeanour is not particularly reliable guide to whether or not a witness' evidence is true or not and whether or not a witness is a truthful witness. In that regard see what I said in JSC Bank v Kekhman [2018] EWCA 791 (Comm) at [67] and [68] as to the difficulty, in terms of a judge's ability to evaluate honesty and reliability merely by demeanour - see also in that regard National Bank Trust v Yurov [2020] EWHC 100 (Comm) at [50(4)].

125. This Court routinely allows and hears video evidence from important witnesses abroad, including parties in fact abroad where there are serious allegations involving allegations such as fraud and conspiracy. A case in point is the case, which I tried, of Lakatamia Shipping Co Ltd v Su [2021] EWHC 1907 (Comm) , at [219] and following, and [269].

126. Experience shows that judges of this Court are not inhibited, nor is there any impediment to justice to judging matters of fraud and the like, where witnesses are giving evidence over the video link. In that regard I was also referred to the decision of HHJ Pelling KC, sitting as a judge of the High Court, in the case of Al Jaber v and Al Ibrahim [2023] EWHC 719 (Comm) , in which the judge stated as follows at [10] : "10. The Defendants rely quite heavily on some case law which has developed during and since the pandemic which demonstrates a greater willingness to accept evidence delivered remotely than has been the case in the past. In fact, perhaps the most helpful of the decisions identified was that of Moulder J, who in April 2022 in Deutsche Bank AG v Sebastian Holdings [2022] EWHC 1555 (Comm) expressed the view that: "The experience of the pandemic has demonstrated that counsel are able to cross-examine witnesses effectively over a link and the Court is able to assess the evidence of witnesses and form a view on the credibility of witnesses who give evidence remotely." She went on to make the additional point that where the allegations that are being made are sufficiently grave, then arrangements can be put in place to ensure that the witness is being appropriately scrutinised by the Court while giving evidence. She concluded by saying that ultimately the test which a Court should apply is whether the use of remote evidence is likely to be beneficial to the efficient fair and economic disposal of the proceedings in the case. I respectfully agree.

11. I leave to one side the impact of costs considerations, because the marginal difference between travelling to London and giving evidence and giving evidence remotely from Saudi Arabia is a margin which is probably immaterial. However, focus on efficiency and fairness, and in particular fairness, engages a rather more serious inquiry. … 13It seems to me, therefore, that I have to grasp this particular nettle at this stage. In relation to fairness, I have to weigh on one side the fact that this is a high value claim, the outcome of which depends on allegations and counter-allegations of dishonesty, each of which points to cross-examination forming a critical part of the way in which this case to be resolved. That points firmly towards the Defendants attending the trial if possible. Balanced against that is the fact that the issue that arises is not between the Defendants giving evidence and not giving evidence (unless this application is refused) but between cross examination in person and cross examination remotely. That suggests that the disadvantage to the Claimant is much reduced, particularly since in an appropriate case submissions can be made concerning the weight that should be accorded to evidence given remotely. I also take into account that in my experience at least cross-examination via a remote link (particularly where interpreters are not involved) is as effective or nearly as effective as cross-examination in person. These two last mentioned factors when taken together with the possibility that if an order is not made the Defendants will not be able to attend and give evidence at all, leads to the conclusion that the order sought should be made. In a case such as this the possibility that the Defendants may be prevented from giving evidence when the outcome is likely to depend crucially on that evidence is the determining factor."

127. That was a case where the relevant witness could not leave Saudi Arabia.

128. I should say that in my experience, post pandemic and in recent years, accords with that of Dame Clare Moulder and HHJ Pelling KC as to the fact that cross-examination from a remote link, particularly where interpreters are not involved, is as effective or nearly as effective as cross-examination in person, especially where there are protections in place, as I have indicated there would be in this case.

129. There are nevertheless authorities which have rightly emphasised that, whatever the difference there may be between video link evidence and live evidence in Court, the parties will be on a more equal footing than one party being present and cross-examined and evidence of the other being confined to the reading of a statement pursuant to a Civil Evidence Act Notice (see in this regard what was said by Newman J in Rowland v Bock [2002] EWHC 692 (QB) ).

130. The sentiments expressed in that case would also apply in this case if I took at face value what is said by Mr Burton, because the comparison in the present case is not between Mr Burton giving evidence by video link evidence in Switzerland and by giving evidence in person in England. Taking Mr Burton's evidence on its face, Mr Burton will not give evidence in England and therefore the contrast will be between the giving of live evidence and his cross-examination and his evidence simply being put in under a Civil Evidence Act Notice with no cross-examination.

131. I have also been referred to a number of other authorities. One of the authorities that Mr Atrill KC particularly relied upon is the decision in BCCI v Rahim [2005] EWHC 3550 (Ch) , where Lewison J said as follows at [5]-[8]: "5. Mr. Naqui in addition to ill health has a fear of arrest or potential arrest if he were to come to this country to give evidence. He was at one time the Chief Executive Officer of BCCI. He has already served two prison sentences, one in Abu Dhabi and the other in the United States, relating to events arising out of the collapse of BCCI. There is, as Miss Grossman points out, no arrest warrant currently issued in relation to him and if he were to be arrested any potential prosecution would relate to events which took place more than fifteen years ago. On the other hand, he has been advised by his American attorneys not to travel to this country in the absence of an assurance from the prosecuting authorities that no prosecution will be brought against him. Such an assurance has not been given and it is very unlikely indeed ever to be given.

6. Mr. Head submits, and I agree, that, rightly or wrongly, Mr. Naqui has a fear of arrest. Is that fear that I think I must take into account. Mr. Naqui’s credit is hotly in issue and no doubt it will be put to him that he is a convicted fraudster and has served prison sentences for those crimes. The question for me is whether those reasons upon which Mr. Naqui relies are sufficient to enable me to make an order permitting his evidence to be given by video link. Miss Grossman submits that it is an essential feature of our legal process that in the absence of exceptional circumstances a witness must come to court to give his evidence so that his demeanour can be fully assessed by the trial judge and so that the court can exert such control as is necessary over the giving of evidence before it.

7. Miss Grossman also suggested that the possible sanction of prosecution for perjury might be another reason why Mr. Naqui should be required to come to court to give his evidence. I discount that latter submission for a number of reasons. The first is that if Mr. Naqui does not come to court his evidence will still be tendered by way of a hearsay statement. Secondly, even if he does come to court and give his evidence he will doubtless be back in Pakistan before the judge gives a judgment or there is any possibility of any arrest for perjury having been made. As to Miss Grossman’s broader submission that it is an essential part of the English legal system that a witness should come to court to give evidence personally, that approach seems to me to be inconsistent with the recent decision of the House of Lords in Polanski v. Conde Nast Publications Limited [2005] 1 AER, 945 . I refer in particular to the speech of Baroness Hale at paragraph 80 in which she said: "The 1995 Act and the CPR are part of a new approach to civil litigation in this country. The court is in charge of how the dispute which the parties have put before it is to be decided. Technicalities which prevent the court from getting the best picture it can of the case are so far as possible to be avoided. The court is to be trusted to evaluate the weight of the relevant evidence for itself. The evidence is to be given in the most efficient and economical way consistent with the object of doing justice between the parties. New technology such as VCS is not a revolutionary departure from the norm to be kept strictly in check, but simply another tool for securing effective access to justice for anyone."

8. Mr. Head points out, and I agree, that Mr. Naqui is not a party to the proceedings. He is a witness whose evidence the liquidators rely on and who cannot be compelled to come to court. Moreover, if he does not come to court to give his evidence, then as I have said his witness statement will still be tendered and Mr. Rahim will himself have been deprived of an opportunity to test Mr. Naqui’s evidence by cross-examination. The process of giving evidence by video link is now well recognised in our courts and those judges who have experienced it find it little different from the experience of seeing a witness in the court room. Reference to this is made by Lord Nicholls of Birkenhead in paragraph 14 of his speech in the Polanski case. "

132. It is clear that ultimately every case turns on its facts as to whether or not there is a good reason for giving evidence by video link. Cases can be found depending on their particular facts on both sides of the line in that regard. An example of that is the decision of Freedman J in Graham Hunter Martin v Herbert Smith [2024] EWHC 1485 (KB), in particular, at [28] to [31]: "28. In my judgment, the critical feature in this case is the difference between the evidence being given in court and on a video. When it is said that it is less than ideal, that really matters in this case. The reasons for this are as follows. First, the centrality of Mr Thompson’s evidence to the issues in this case, particularly in respect of causation on the factual case, causation on the counterfactual case and evidence as to quantum. Second, he is the only witness from KPMG Singapore who is giving evidence as to these critical causation issues. Third, there has been an unfortunate history in relation to the production of documents, which entitles the claimant to scrutinise very carefully the veracity of the evidence and to test it as best as they can. Fourth, this is not just about testing on the documents that are currently before the court. The sixth tranche happening in the course of the last few days evidences that there is an evolving picture. There is reason to fear that the drip drip disclosure has not yet finished, and it is possible that it might creep into the hearing itself. When that does happen in a trial, that by itself gives rise to some control issues. Even before then, it is possible that the claimant is entitled to submit that KPMG Singapore has not been engaging adequately with the process and that the mind is best concentrated by the evidence being given in court. Fifth, in this case the evidence is best received with the same conditions for all concerned. It is true that there is an asymmetry between the claimant’s case and the defendant’s case. It is not necessary to go into the nature of that asymmetry, but this is not simply a case of whether a specific event happened that was seen by two conflicting witnesses. It involves issues of fact, and especially the counterfactual matters which can be very difficult for a court to judge.

29. The fairness in this case is that all parties should come away from their home territory into the witness box and face the court. In some cases, that matters much less, but in my judgment on the facts of this case, it matters greatly. This is a case where fairness to the parties and absence of prejudice to the court involves giving the court the best opportunity in order to be able to judge the difficult issues between the parties.

30. For those reasons, I have come to the conclusion that the substantial disruption that coming to London which is involved for both Mr Thompson and for his firm is outweighed as a consideration by the importance to the administration of justice of Mr Thompson giving evidence in court rather than through a video link.

31. I have taken into consideration the submission of the defendant to the effect that the court should consider the possibility that Mr Thompson will not come to court to give evidence in the event that the application is dismissed. It was made clear that the defendant was not giving an ultimatum to the court, but was simply referring to the fact that Mr Thompson is a voluntary witness and it was submitted that in those circumstances there was a real prospect that he may not attend. I regard that as a fanciful possibility on the information currently before the Court – that is to say that the court would be so surprised if that would occur that it is entitled to find that there is no real prospect that it would occur. The reasons for this are as follows. First, in a letter dated 6 February 2024 by the defendant’s solicitors, it was said that by that stage Mr Thompson had said that he was willing to give oral evidence, but he preferred evidence to be given by VCF. It was not said that in the event that the evidence was in person, he would refuse to attend. Second, Mr Thompson has not given any evidence to say that he would not attend the court in the event that this application was not allowed. Third, the court can infer that as a major partner of KPMG Singapore, Mr Thompson is used to travelling internationally. Although KPMG Singapore is a separate profit centre, no doubt he would be used to travelling extensively and internationally and would be used to travelling to London and other international centres where KPMG have a major presence. Therefore the possibility of his having to come on this particular trip can hold no particular fears for him. Fourth, Mr Thompson has given extensive evidence of how much reputation means to KPMG Singapore. That was important in relation to the counterfactual case, and it was written in the context of saying that the reputation of KPMG Singapore could not be maintained in the event that Mr Martin, the claimant, remained a partner of the firm. It is entirely consistent with concern about reputational matters that a senior partner of KPMG Singapore would be unlikely to give written evidence to the English court, and then decide not to attend the High Court in London with all the reputational consequences that such a decision might lead to. "

133. I should say that the Defendants rely on some of the sentiments expressed in [28] in terms of the centrality of the evidence of Mr Burton and the fact that he is in essence the star witness dealing with the crucial issues in relation to knowledge in particular. They also say there is something of a history of problems in relation to the production of documents.

134. Against that, I do not consider that Graham Hunter Martin v Herbert Smith is comparable on the facts because, whilst Freedman J in that case was able to regard as "it being a fanciful possibility on the information currently before the Court that he may not attend", as I have already identified, the unequivocal evidence of Mr Burton is that he will not attend if there is not a video link order. That is a material distinction factually between that case and the present case. Vulnerability

135. The next area on the authorities that I need to consider is where there is evidence that the witness is vulnerable and whether that may be a good reason to give evidence by video link. That is dealt with in the CPR at PD 1A, "Participation of vulnerable parties or witnesses". That provides in material respects as follows: " Vulnerability :

1. The overriding objective requires that in order to deal with a case justly the Court should ensure, so far as practical, that the parties are on an equal footing and can participate fully in the proceedings and that parties and witnesses can give their best evidence. The parties are required to help the Court to further the overriding objective at all stages of civil proceedings.

2. Vulnerability of a party or witness may impede participation and also diminish the quality of evidence. A Court should take all proportionate measures to address these issues in every case.

3. A person should be considered as vulnerable when a factor which could be personal, or situational, permanent or temporary, may adversely affect their participation in proceedings or the giving of evidence.

4. Factors which may cause vulnerability in a party or witness include (but are not limited to) – (a) Age, immaturity or lack of understanding; (b) Communication or language difficulties (including literacy); (c) Physical disability or impairment, or health condition; (d) Mental health condition or significant impairment of any aspect of their intelligence or social functioning (including learning difficulties); (e) The impact on them of the subject matter of, or facts relevant to, the case (an example being having witnessed a traumatic event relating to the case); (f) their relationship with a partner or witness, examples being sexual assault, domestic abuse or intimidation (actual or perceived) ...

5. When considering whether a factor may adversely affect the ability of a witness or party to participate in proceedings and/or give evidence, the Court should consider their ability to – (a) understand the proceedings and their role in them; (b) express themselves throughout the proceedings; (c) put their evidence before the court; (d) respond to or comply with any request of the court, or do so in a timely manner; (e) instruct their representative/s (if any) before, during and after the hearing; and (f) attend any hearing. …

7. If the Court decides the parties or witness' ability to participate fully and/or give best evidence is likely to be diminished by reason of vulnerability, the Court may identify the nature of the vulnerability in an order and may order a further provision to be made to further the overriding objective. This may include concealing the address under contact details of either party or a witness for appropriate reasons." (Emphasis added)

136. Then paragraph 8 deals with ground rules and then it is said at paragraph 9 and 10 as follows: "Before ordering any ground rules, special measures or other support the Court must consider views expressed by a party or witness about participating in the proceedings or giving evidence ." Special measures

10. Special measures may include but are not limited to ... (b) allowing a party or witness to give evidence remotely by video conference. (Emphasis added)

137. The appropriate approach of the Court in the context of vulnerable witnesses was addressed in the case of CXC v Clarke [2024] EWHC, 3138 (KB), at [15] to [18], where the judge addressed PD 1A and considered what should happen if a witness was identified as being vulnerable. Those paragraphs provide as follows: " Practice direction 1A .

15. As a first step, the court is required to identify if a party or a witness is vulnerable (paragraphs 2 to 4) and then determine if that vulnerability is likely to restrict that person's full participation in proceedings or the ability of that person to give their best evidence (see paragraph 5) in this judgment I will refer to such a vulnerability as a "relevant vulnerability").

16. If a relevant vulnerability is identified, the Court should " take all proportionate measures " to deal with it (paragraph 2). I will refer to such measures as "protective measures". The PD appears to draw a distinction between 2 general types of protective measures: "directions" (paragraph 6) and "provisions" (paragraph 7). There is a general discretion to "make provision" but directions can only be made when they are necessary .

17. In line with the need to act proportionately (doing no more than is necessary to address the relevant vulnerability), the court should first consider if a protective measure short of a direction is enough. Such provision may include " concealing the address and/or contact details of either party or a witness for appropriate reasons " (paragraph 7).

18. The Court must then consider " if it is necessary to make directions " to address the relevant vulnerability (paragraph 6). In a straightforward case the Court may conclude that directions are not necessary and that the provisions it has made are sufficient to address the vulnerability. In other cases, both provisions and directions may be required. "

138. As is clear from Practice Direction 1A itself, and as I have already quoted, special measures can include allowing a party or witness to give evidence remotely by video conference. So the giving of evidence by video conference can be a proportionate measure in order to enable the evidence to be given by that vulnerable witness. F.2 The parties' respective positions and discussion

139. As has already been accepted by another judge of this Court, HHJ Pelling, Mr Burton subjectively has fears for his safety. That is accepted by Mr John on behalf of Mrs Wilson. So far as Mr Wilson and RPL are concerned, HHJ Pelling proceeded on such a basis on a previous occasion. He also accepted that aspects of the evidence of Mr Burton are factually correct (i.e., the overflying of the plane, the use of a private detective to film from a location which would capture movement to the Defendant's address). Mr Wilson also accepts that Mr Burton has made allegations about threats, et cetra. He does not accept that those allegations about threats are necessarily correct. In fact he denies that such threats were made. But it seems to me, ultimately, that the backdrop is indeed that Mr Burton subjectively fears for his safety. I cannot go behind that and I must proceed on that basis.

140. It is submitted on behalf of the Defendants that there is no good reason for, and/or it is not proportionate, to order a remote hearing. It is said to be a departure from the usual position of giving evidence in person. That is because it is said that there are arrangements which can be made to address the specific concerns of Mr Burton. Those that are proposed are as follows: (1) that Mr Wilson is excluded from Court on the days on which Mr Burton is giving evidence; (2) that Mr Burton is permitted to give evidence behind screens or in private; (3) arrangements are made for Mr Burton's entry into and exit from Court separate from the general public; (4) that arrangement are made so that Mr Burton can enter and leave the witness box privately, including provision of a private consultation room; and/or (5) that Defendants will inform the Claimants' solicitors of the hotels in which they and their witnesses are staying so that Mr Burton can ensure he stays in a different hotel.

141. It is said that Mr Burton is also protected by the Court's inherent powers to prevent contempt of vourt. Reference is made in that regard to the observations of the Lord Chief Justice in R v Runting [1989] 89 Cr. App. R. 243 at 245.

142. In addition, and as I have already foreshadowed, Mr Wilson is willing to give undertakings to the Court which it is said will offer further protection. In that regard my attention has also been drawn to enforcement of committal orders of undertakings given by a party which are addressed in the White Book at paragraph 81CC.22 and to two authorities, Navigator Equities Limited and another v Deripaska [2021] 1 WLR, in particular at [82], as well as South Bucks District Council v Porter (a decision of the House of Lords) [2003] 2 AC 558 , where Lord Bingham said at [32] that: "When granting an injunction, the Court does not contemplate that it will be disobeyed".

143. However, the reality is that the unequivocal evidence before me is that Mr Burton simply will not attend to give evidence in England if his application for videolink evidence is refused, even if there are such undertakings given by the First Defendant when set against the backdrop of his subjective fear for his safety.

144. I consider that this Court cannot go behind that in circumstances where it is not suggested that Mr Burton does not genuinely hold such beliefs and does not genuinely have that fear.

145. Also, in considering whether there is no good reason for, and it is not proportionate to order a remote hearing, I consider that this is one of those cases where there would appear to be good reason and it would be proportionate to order a remote hearing because the evidence of Mr Burton is that, unless such an order is made, he will not attend to give evidence in England. This is not a comparable situation to Deutsche Bank , where Mr Vik was holding a gun to the head of the Court or the Sword of Damocles. Mr Burton is in a different position.

146. It is common ground that he is vulnerable. It is not a case of him holding a gun to the head of the Court but, rather, considering, as I must, in accordance with Practice Direction 1A, what appropriate provisions should be made to further the overriding objective, which include allowing the witness to give evidence remotely by video conference in the context of someone who is a vulnerable witness.

147. In such circumstances, I consider that it would be appropriate to grant the application for videolink evidence, subject to considering the other factors which are relied upon by the Defendants which are said to militate against that order.

148. The second point which is made -- and it is made on behalf of both D1 and D3 and D2, although it will be fair to say that Mr John has majored on this aspect of the evidence (given that the centrality of the evidence of Mr Burton in relation to the case against Mrs Wilson, where essentially that turns on he said/she said in terms of what Mr Burton allegedly said to Mrs Wilson by which it is said she acquired knowledge of the fraud, which is hotly contested) is that the nature of the evidence at this trial means it would be disproportionate and unfair if Mr Burton gave evidence remotely, even if the alternative arrangements that are being proposed do not meet every single issue that might arise.

149. It is said that a number of points tip the balance in favour of evidence being given in person. They rely upon the fact that it is generally recognised that live evidence is to be preferred and remote evidence is inevitably not as ideal as evidence in person, relying upon what I said in Deutsche Bank AG v Sebastian Holdings Inc (2023) at [48], as quoted above. That has to be read of course in the context of the other authorities that I have identified, and the experience of this Court, including my own experience, of the ability of this Court to deal with issues such as fraud, where important witnesses are heard by video link evidence abroad.

150. It is said that this is all the more important in the present case because Mr Burton is an extremely important witness, where both Mr and Mrs Wilson say his evidence is materially wrong, to put it neutrally. It is said the allegations he makes are very serious and Mrs Wilson’s case, the claim against her, is almost entirely based on Mr Burton's word against her own with regard to her lack of knowledge of the RSM Audit Fraud. It is said that he should give evidence in the face of the Court. As Mr John graphically put it in the course of his oral submissions, that he should look the judge in the eye and should also look Mrs Wilson in the eye when he is giving evidence.

151. Building upon that submission, it is said that the nature of the dispute potentially turns on competing views of the Defendants, and Mr Burton's, credibility and the quality of their evidence means having parity of conditions in which they are giving evidence (i.e. in person) and it is particularly important for a fair trial for the three Defendants concerned. It is said that, by Mr Burton giving evidence in this jurisdiction, the judge would receive the evidence in exactly the same way and that the Defendants will not be at a disadvantage of themselves giving evidence in person whereas there would be no such comparable pressure upon Mr Burton giving evidence from a remote location.

152. There are also specific points in relation to Mrs Wilson that do not apply in relation to Mr Wilson which I have borne in mind, including that it is said to be unfair in the context of the past behaviour of Mr Wilson over which Mrs Wilson has no control and indeed from which she herself has suffered.

153. Much of those submissions are predicated on the basis that the relevant comparison is between giving evidence by video link from Zurich and giving evidence in person here. Of course, all things being equal, and if Mr Burton would give evidence here, it would be better that all the witnesses give evidence face to face in this jurisdiction. However, I do not consider that it would be disproportionate or unfair for Mr Burton to give evidence remotely from Zurich in this case. The reality is that it is either he gives evidence remotely from Zurich and is cross-examined in relation to it or he will not be giving evidence. I have to take at face value what Mr Burton says in circumstances where it is common ground that he subjectively has such a fear.

154. Standing back for a moment, there is also every reason to believe that that subjective fear is credible. One can test it like this: no person would leave a jurisdiction and not even tell their family where they had gone unless they had a genuine fear and it was a real fear. Set against that background, I can well understand why, notwithstanding all the special measures that are proposed, and those including an undertaking, those would not assuage Mr Burton's concerns. The fact is that the evidence before me, as Mr Atrill KC confirmed in the early part of this afternoon, is that such measures, including the undertakings, do not assuage Mr Burton's concerns. Therefore, it is not about whether or not objectively there is a real risk that Mr Wilson would flout any undertakings he gives. The position is that Mr Burton, based on past events and what he believes genuinely to have happened in the past, subjectively believes that all those measures would not prevent Mr Wilson acting contrary to his interests if he attends in England.

155. When weighed in the balance, and considering the overriding objective and if, as I have found, that comparison is between Mr Burton giving oral evidence and being cross-examined, albeit in Zurich, as opposed to Mr Burton not giving evidence at all, and also bearing in mind that he is a third party, he is independent of the Claimants, he is not a compellable witness and the Claimants cannot compel him to give evidence, in circumstances where he has indicated that he will not give evidence in categorical terms if it has to be evidence in England, then in weighing the balance between any prejudice suffered by Mr Wilson to RPL in having to cross-examine him over the video link, and questions of parity and the question of him not giving evidence at all and his evidence simply going in, I consider that it would be a weighty factor in favour of the Claimants to consider the prejudice they would suffer if they were left with not being able to adduce oral evidence from Mr Burton. That is, I consider, a very powerful factor and more powerful than the residual prejudice that the Defendants will suffer in terms of having to cross-examine Mr Burton over a video link.

156. As has been found in the cases that I have cited, in cases such as Al Jaber v and Al Ibrahim and the other authorities that I have referred to, including JSC Bank v Kekhman and Lakatamia Shipping Co Ltd v Su , experience shows that the differences between cross-examination over a link and cross-examination in person, whilst they exist, are not likely to impede the cross-examination to any great extent, particularly where, as here, the cross-examination is likely to take place over a significant period of time.

157. The experience of this Court, and of fellow judges of this Court, as reflected in sentiments such as those expressed by HHJ Pelling and Dame Clare Moulder, is that the giving of evidence, even in fraud cases, over a video link is an effective way to ensure that all relevant evidence is before the Court.

158. When balancing the factors in terms of the importance of the evidence of Mr Burton by giving evidence in person for the Claimants, and countervailing against that any disadvantage that the Defendants will suffer by Mr Burton giving the evidence remotely from Zurich, I consider that the overriding objective is met by Mr Burton giving evidence that is most likely to give a just outcome as between the Claimants and the Defendants rather than the whole picture not being before the Court.

159. In such circumstances, I am satisfied that there is good reason to accede to the video link application and that that order would serve a legitimate aim. It would ensure that all the evidence from both parties is before the Court and allow the trial judge to judge the matter on its merits. That is far more desirable than a situation where a key witness will not be giving evidence at all.

160. For completeness, I should say that I have given careful and anxious consideration to the submissions that have been made from the Defendants that Mr Burton's evidence really cannot be taken at face value and that, in circumstances where he is willing to give evidence in Zurich, many of the same concerns would arise which he says arise in relation to England. I do not consider that that is a relevant comparison because I can well understand, given the past history of events and alleged threats in this jurisdiction, why Mr Burton perceives the risks and the fear to his safety to be greater in this country rather than in another neutral country, namely Switzerland.

161. Equally, I think it would be wrong for me to take a view that, in the light of any undertakings that might have been given and having read my judgment, Mr Burton might change his mind as to whether or not he would give evidence in England. It seems to me that that would be not only a matter of pure speculation but contrary to the express evidence on instructions that Mr Atrill KC gave me in the early part of this afternoon, when he transmitted the unequivocal evidence of Mr Burton that he would not attend to give evidence in England, even if I made an order with special measures, including the giving of undertakings.

162. I consider that I do have to proceed on the basis that Mr Burton will not give evidence in England, and that the only basis on which he would give evidence, and be cross-examined, is if he gives video link evidence from Zurich. I consider that this best furthers the overriding objective, and does not result in any prejudice, still less any significant prejudice, to any of the Defendants in the digital age.

163. To the extent that there is any disparity, (and I doubt that there is any real disparity) then it will be open to the Defendants to make appropriate submissions to the trial judge about any difference in weight to be given to such evidence and any matters that the Court would have to take into account when weighing the evidence of Mr Burton against the evidence of those witnesses who give evidence in this jurisdiction. Those are matters which a trial judge is well used to considering, and well able to do, and I am satisfied that the Defendants will not suffer any prejudice by the making of the video link application, which cannot be remedied by appropriate submissions during the trial process and in closing at the end of the trial.

164. Accordingly, and for all those reasons, I accede to the Video Link Application.

165. Those are all the applications that it has been possible to deal with within the Pre Trial Review, and the time available in relation thereto.

166. I will now proceed to address trial management issues to ensure that the action is ready for trial.