Notice Of Prove – Ultimate Fabrication Challenge

The recent case of Anthony McGann v Michael Bisping [2017] EWHC 2951 received more column inches than most contractual disputes. This was largely due to the ever growing popularity of mixed martial arts and the Ultimate Fighting Championships in which the Defendant participates.

Further press interest was then generated due to the alleged scuffle between the parties outside the court. However beyond the tabloid headlines the case provided a useful reminder to practitioners in respect of the use of notices to prove.

Notice to prove

As set out in CPR 31.19 "a party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves notice that he wishes the document to be proved at trial." Such notices should be served by the date of serving witness statements or within 7 days of disclosure of the document, whichever is later. The notice itself should be completed on form N268.

The wording of the Rule is unambiguous; if no notice is served then the receiving party will be deemed to have admitted the authenticity of the document irrespective of whether the point has been raised elsewhere.

For example it is fairly common in cases where dishonesty and/or fraud are suspected for the defence to challenge the authenticity of the claimant's documents, either by reference to specific items or generally across the whole case. However unless such a pleading is then followed up with a notice to prove following disclosure the defendant will have lost the chance to raise the issue at trial.

Other challenge

In the event that a notice to prove is not served all is not lost. It is still open for the receiving party to challenge the accuracy and meaning of the contents of the document, it just cannot be argued that the document itself is not authentic.

Equally the service of a notice to prove may not in itself be sufficient to fully challenge all aspects of the document. In Redstone Mortgages Ltd -v- B Legal Ltd [2014] EWHC 3390 (Ch) the court ruled that a notice to prove was not sufficient to allow a party to allege forgery of the document. Instead the allegations should be set out clearly in the pleadings so that the parties and the court are fully aware of them at the earliest opportunity.

In McGann v Bisping the Defendant had made it clear in his defence and counterclaim, which were served four years before the trial, and in witness statements served eleven months later, that the...