The Commercial Court decision in Invest Bank PSC v El-Husseini & Ors [2024] EWHC 1804 (Comm) provides a useful reminder of the strict procedural consequences that can follow from failing to comply with the rules governing notices to prove documents. The judgment, delivered by Mr Justice Calver, arose during the course of a four-week Commercial Court trial and concerned an application by the claimant bank for relief from sanctions.
The underlying proceedings were brought under section 423 of the Insolvency Act 1986. This provision allows the court to set aside transactions entered into at an undervalue where the purpose of the transaction was to prejudice the interests of creditors. The Bank alleged that certain transactions involving members of the El-Husseini family and associated parties had been structured with that objective in mind. The issue arose on day six of the trial and concerned a Divorce Agreement disclosed by the Sixth Defendant. The Bank wished to challenge the date on which the agreement had been executed.
The Notice to Prove
Under Civil Procedure Rules r.32.19, a party is deemed to admit the authenticity of a document disclosed to it unless it serves notice requiring the document to be proved at trial. The notice must be served by the latest date for serving witness statements or within seven days of disclosure, whichever is later. In this case, the deadline for witness statements was 1 March 2024. The Bank did not serve a notice to prove by that date. Instead, it served one on 14 March 2024 seeking to challenge the date of execution recorded on the Divorce Agreement.
The Bank argued that the notice was nevertheless valid because the court had later ordered the service of supplemental witness statements by 17 June 2024. On that basis, it contended that the “latest date for serving witness statements” within CPR 32.19 included the later deadline for supplemental statements.
Calver J rejected that argument. Although he observed that CPR 32.19 is “poorly worded”, he held that the rule refers to the deadline for primary witness statements rather than any later supplemental statements. If the Bank’s interpretation were correct, parties could remain uncertain about whether documents might be challenged at a much later stage in the litigation. This would undermine the purpose of the rule, which is to give the party relying on the document sufficient time to gather evidence proving its authenticity. The consequence was that the Bank had been deemed to admit the authenticity of the Divorce Agreement once the 1 March deadline passed.
Relief from Sanctions
The Bank therefore required relief from sanctions under CPR 3.9. The court approached the issue using the familiar three stage framework established in Denton v TH White Ltd., concluding that the breach was both serious and significant. Although the notice had been served only two weeks late, the Bank waited almost three months before applying for relief. The issue ultimately had to be addressed during the trial itself, requiring the court to interrupt the hearing to determine the application.
The Forgery Issue
Ultimately, the decisive factor was that granting relief would serve no useful purpose. The Bank’s objective in serving the notice to prove was to challenge the date on which the Divorce Agreement had been executed. As the court explained, alleging that a document was not executed on the date appearing on its face amounts, in law, to an allegation of forgery.
Relying on the Court of Appeal decision in Eco 3 Capital Ltd v Ludsin Overseas Ltd, the judge held that such an allegation must be clearly pleaded. A party cannot avoid pleading forgery by simply requiring the opposing party to prove the document’s authenticity. The Bank had not pleaded forgery and accepted that it could not do so. Allowing the notice to prove would therefore permit what the authorities describe as a covert and unpleaded case of forgery. In those circumstances the application could achieve nothing of practical value.
The Bank’s application for relief from sanctions was accordingly refused and dismissed with costs.
Significance
The decision highlights two practical points for litigators.
First, it clarifies that the “latest date for serving witness statements” in CPR 32.19 refers to the deadline for primary witness statements, not any later deadline for supplemental statements. Parties should therefore ensure that notices to prove are served by the original witness statement deadline.
Secondly, the judgment demonstrates the limits of challenging the authenticity of documents without properly articulating the case being advanced. Where the substance of the challenge amounts to an allegation of forgery, that allegation must be clearly pleaded.
The Invest Bank PSC case serves as a reminder that even relatively minor procedural oversights can have significant consequences on the potential outcome of a trial, particularly once it is already underway.
© Whitestone Chambers 2026
Sources:
Invest Bank Judgment: https://www.bailii.org/ew/cases/EWHC/Comm/2024/1804.html
Denton v TH White ltd. https://www.bailii.org/ew/cases/EWCA/Civ/2014/906.html
Eco 3 Judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2013/413.html