<<

. 6
( 34)



>>

admit or deny it.
CPR 3.4(2) gives the court the power to strike out a statement of claim, inter
alia, if there has been a failure to comply with a rule or Practice Direction. The
Practice Direction on striking out a statement of case states that a defence may
fall within the rule where it consists of a bare denial or otherwise sets out no
coherent statement of facts or if the facts it sets out would not, even if true,
amount to a defence. The court can of its own motion strike out the defence or
order the defendant to give additional information and, in default, order that
the defence be then struck out.94


Claimant™s right of reply
In his Interim Report, Lord Woolf said that the plainti¬ need not be given a right
to reply, but his Final Report allowed that, at least in some circumstances, a reply
should be permitted. CPR 16.7 states that a claimant who does not ¬le a reply
is taken to admit the matters stated in the defence and that a claimant who fails
to deal with something raised in the defence is taken to require that matter to
be proved.

94
For a remarkable example of the use of the strike out power, see Raja (Representative for the
Estate of Mohammed Sabir Raja, decd) v. Van Hoogstraten [2006] EWHC 1315, Ch. Mr Raja
(R) had been the tenant and former business associate of the notorious millionaire Nicholas
van Hoogstraten (H). R sued H for an account but before the action came to trial he was
murdered by two thugs. H and the two thugs were convicted of the murder. H™s conviction
was later overturned by the Court of Appeal and on a retrial he was acquitted, but Raja™s
widow continued the civil action against H. Lightman J., struck out H™s defence and
counterclaim on the ground that it was established on a balance of probabilities “ ˜and indeed
if it were necessary beyond reasonable doubt™ “ that H had hired the two thugs to murder Raja
to stop his legal action. As the judge put it, there could be no greater reason for striking out a
defendant™s statement of case than the murder of his opponent with the expectation of his
being unable to substantiate his claim. (See L. Flannery and P. Wood¬eld, ˜Deadly Encounter™,
156 New Law Journal, 29 September 2006, pp. 1468“9.)
78 Pre-trial civil proceedings


Allocation to track
Allocation of the case to its proper track is based on answers given by both sides
to a booklet called the allocation questionnaire (Form N150). The court sends
the questionnaire to both sides after a defence is ¬led. It must be completed
within the speci¬ed time, usually fourteen days. The allocation decision is gen-
erally taken by a District judge or a Master (see CPR 26.6). The main consider-
ation is the amount claimed but there are various additional relevant matters
including the nature of the remedy sought, the complexity of the facts, law and
evidence, the number of parties, the amount of oral evidence, the importance
of the claim to persons who are not parties and the views of the parties (see CPR
26.8). If the amount in dispute is under £5,000, the normal track is small claims,
but a personal injury claim where the claim for ˜general™95 (as opposed to
˜special™ damages) is over £1,000 is excluded, so is a residential tenant™s claim for
damages of more than £1,000 for repairs or if it is a claim for unlawful eviction
or harassment. If the claim is for between £5,000 and £15,000 it will normally
be allocated to the fast track but again there will be exceptions. To be ¬t for the
fast track the procedural judge must consider that the trial can be completed
within ¬ve hours and that oral expert evidence will be limited to one expert per
party in no more than two ¬elds. All cases that are not allocated to the small
claims or fast track are allocated to the multi-track.
The allocation questionnaire asks, inter alia, whether the parties wish there
to be a one-month stay to attempt to settle the case. (A stay can be ordered
without the parties™ consent.) It asks whether they have complied with any pre-
action protocol, what witnesses of fact it is intended to call and which facts they
are witnesses to. There are several questions about expert witnesses, with the
emphasis placed on the desirability of single experts jointly instructed. (The
questions ask whether expert reports have been copied to the other side, the
names of the proposed experts and their ¬elds of expertise, whether the parties
will be using the same expert(s) and, if not, why not and whether there is a wish
that the expert(s) give oral evidence at the trial.) The parties require consent to
use expert evidence at all. There are questions about trial location, legal repre-
sentation and time estimates. The parties are asked to give an estimate of costs
to date and likely overall costs. The ¬nal section invites agreed directions (see
CPR Practice Direction to Parts 26“29).
By fourteen days after the defence is entered, both parties are therefore
required to know a great deal about the case with regard to the facts, the likely
evidence and the costs. The Practice Direction makes it clear that the parties are
expected to consult one another and to co-operate in completing the allocation
questionnaire.
If the solicitors do not give su¬cient replies, they are asked to attend an allo-
cation hearing. The person attending the allocation hearing is required to be

95
Damages for pain, su¬ering and loss of amenity.
79 Legal proceedings


someone with personal knowledge of the case and with authority to deal with
any issues likely to come up (CPR Practice Direction, Part 26, 6.5).
There are costs sanctions for causing an allocation hearing by failure to return
the allocation questionnaire. The party in default will be required to pay “
forthwith “ the other side™s costs of the hearing on the higher ˜indemnity™ basis
(see p. 562 below). If those costs are not paid within the stated time, the court
can order that the statement of claim be struck out (CPR, Part 26, 6.6(2)).


Counterclaim
A counterclaim by the defendant is treated like a claim and the claimant can
then ¬le a defence to the counterclaim (see CPR, Parts 20.3 and 20.4).


Seeking more information
CPR, Part 18 gives the court the power to order a party to clarify any matter that
is in dispute or to give additional information in relation to any such matter
˜whether or not the matter is contained or referred to in a statement of case™. A
party replying to a request must include a statement of truth (p. 69 above). The
accompanying Practice Direction states that a request ˜should be concise and
strictly con¬ned to matters which are reasonably necessary and proportionate
to enable the ¬rst party [the requesting party] to prepare his own case or to
understand the case he has to meet™ (para. 1.2).
If the person to whom the request is addressed (the second party) considers
that complying with the request would involve disproportionate expense, he
can say so in his reply, with his reasons (CPR Practice Direction, Part 18, 4.1,
4.2). If the second party objects to a request or cannot reply within the stated
time, he does not have to make an application to the court. He must simply
write to the ¬rst party giving his reasons or saying when the reply will be ready.
If the second party fails to respond to the original application, the court will
order that the request be replied to without a hearing. The court can make an
order as to costs at the end of any such hearing. If it does not do so, the costs
cannot be recovered later.


Making applications for pre-trial court orders
Applications (previously called ˜motions™) have to be in writing. They must be
served on the other side as soon as practicable and, save in cases of urgency, at
least three days before the application is to be heard. The application can be
made by a telephone hearing or a video conference. Where the parties agree on
the terms of the order or agree that no hearing is needed, the court has power
to deal with an application without a hearing. The court also has the power to
make an order without a hearing if it does not consider that a hearing is appro-
priate. Telephone conferences have now become an accepted part of the system.
80 Pre-trial civil proceedings


Peysner and Seneviratne™s research report commented on ˜the startlingly wide-
spread take-up of case management conferences being conducted by telephone
conferencing™. This, they said, ˜appeared to be rapidly becoming the norm and
during the period of the research most courts reported that a half or more cases
were dealt without personal attendances™.96
The arrival of the hearing conducted by telephone has now been o¬cially
recognised. An amendment to the CPR in April 2006 provided that in the
county court all allocation hearings, listing hearings, interim applications, case
management conferences or pre-trial reviews of no more than an hour in length
“ or any other application with the consent of the parties and the judge “ will
be conducted by telephone unless the court orders otherwise. Practice Direction
23B excludes from this new rule applications where all the parties are unrepre-
sented, where more than four parties wish to make representations or where the
hearing could result in the ¬nal determination of the whole or any part of the
proceedings.
This new system was rolled out in stages. London, the last stage of imple-
mentation, was due to go live as from 2 October 2006, though in fact at that date
only six of the London courts were operating the system.97


Amendments
Once served, any amendment to an o¬cial document requires either the
consent of the other party or of the court.


Judgment in default
If the defendant fails to ¬le an acknowledgment of service or fails to ¬le a
defence “ provided that in either case the time for doing so has expired “ the
claimant can normally ask the court to enter what is (and also was previously)
called a default judgment. There are some types of case where default judgment
cannot be obtained and others where a default judgment requires the consent
of the court. (Consent is required, for instance, where the claim is against a child
or a patient, or is against the Crown, or is a claim in tort by one spouse against
another.) If the claim is for an unspeci¬ed sum of money, the default judgment
is for an amount to be decided by the court plus costs.
A default judgment can in some circumstances be set aside. It must be set aside
if it was entered prematurely or in breach of any of the technical rules (CPR
13.2). If the default judgment is technically correct, the court may set aside or
vary it if the defendant can show that he has a real prospect of successfully

96
J. Peysner and M. Seneviratne, The Management of Civil Cases: the Courts and the Post-Woolf
Landscape, DCA Research Report 9/2005, para. 3.7, pp. 26“7. They found that, if anything,
telephone conferences were better rather than worse prepared as ˜it was more di¬cult for a
lawyer to operate “o¬ the cu¬” on the telephone than in person™ (p. 27).
97
www.courts-service.gov.uk/infoabout/tel_conf/courts_lon.htm.
81 Legal proceedings


defending the claim or it appears to the court that there is some other good
reason why it should be set aside or varied or the defendant should be allowed
to defend the claim (CPR 13.3). In considering whether to exercise this discre-
tion the court must have regard to whether the application to be set aside or vary
was made promptly.


Summary judgment
Part 24 of the new rules gives the court extensive power to deal with hopeless
cases by way of summary judgment. This power is an extension of the power
that previously existed under RSC, Order 14, but whereas the power under
Order 14 could only be exercised on application of a party, the power under Part
24 can be exercised by the court of its own motion.
The court can give summary judgment if it considers that the claimant or
defendant has no real prospect of success and there is no other compelling
reason why the case should be disposed of at trial (CPR 24(2)).98
An application for summary judgment can be made in respect of the whole
claim or a part of a claim. It can be based either on a point of law or on the evi-
dence or both. At least fourteen days™ notice of the hearing must be given. If the
application is based on a point of law, the notice must identify the point of law.
If it is based on the evidence, the evidence supporting the application must be
¬led. If the respondent wishes to oppose the application, he must ¬le his evi-
dence at least seven days before the hearing. The applicant must ¬le any reply at
least three days before the hearing. Under the new rules an application can be
made in a small claims case as well as in fast track or multi-track cases.
The court™s approach is treated in the Practice Direction (Part 24, para. 4.1).
The old test under Order 14 was no triable issue. The new test is no reasonable
prospect of success. Exceptionally, the court can permit the case to go forward
on grounds of public interest even though the case appears hopeless.
For sharply critical comment on the new, more restrictive approach to
summary judgment see D. O™Brien, ˜The New Summary Judgment: Raising the
Threshhold of Admission™, 18 Civil Justice Quarterly, 1999, pp. 132“48. O™Brien
suggested that making the test at the summary hearing more demanding had a
cost in terms both ˜of the substantive accuracy of the adjudication and, more
importantly, in terms of procedural fairness™ (p. 147). Moreover under the
attenuated fast track procedures the parties were already ˜being denied access to
the full panoply of procedural weapons currently available™ (ibid). Why then
curtail even further their right to adjudication on the merits by insisting that
their case have a realistic chance of success? Also, to the extent that funding
would increasingly be by way of conditional fee agreements (see pp. 630“41
below), there should be even less need to screen unmeritorious claims since that
function would already have been performed by the claimant™s solicitor in

98
On this test see Swain v. Hillman [2001] 1 All ER 91, CA.
82 Pre-trial civil proceedings


deciding whether to take the case. O™Brien said that the dramatic extension of
the court™s summary powers might turn out to be the most radical of Lord
Woolf ™s reforms and one beset with di¬culties. It would be a fertile ¬eld for
satellite litigation ˜with parties investing a great deal of their resources and
energy to ¬ghting and, if unsuccessful, then appealing applications for
summary judgment™ (p. 148). The ˜knock-on e¬ects might be to undermine the
very objectives the new rule was intended to achieve, namely speedy and cost
e¬ective resolution of disputes™.
However, in 2006 Lord Woolf himself criticised the courts for allowing weak
cases to drag on and not using the power of summary judgment enough.
Without naming names, he had in mind especially huge cases in the Com-
mercial Court.99
There are other provisions in the CPR that could have a similar e¬ect to
summary judgment:
• CPR 1.4(1) states that the court must further the overriding objective by
˜actively managing™ cases. CPR 1.4(2) states that active case management
includes, inter alia, identifying the issues at an early stage (CPR 1.4(2)(b)) and
deciding promptly which issues need full investigation and trial and accord-
ingly ˜disposing summarily™ of the others (CPR 1.4(2)(c)).
• The court™s ˜general powers of management™ include the power to exclude an
issue from consideration (CPR 3.1(2)(k)). (The Court of Appeal has held
however that a claim arguable on the pleadings needs to be decided and
should not be excluded by exercise of the court™s powers under CPR
3.1(2)(k).100)
• CPR 3.4(2) states that the court may strike out a statement of case on the
ground that (1) it discloses no reasonable grounds for bringing or defending
the claim; (2) it is an abuse of the court™s process or is otherwise likely to
obstruct the just disposal of the proceedings; or (3) that there has been a
failure to comply with a rule, Practice Direction or court order.


Part 36 offers to settle and payment into court
˜Payment into court™ has for a long time been a device to promote settlement.
The defendant paid a sum of money into a court account as an o¬er of settle-
ment. If the claimant accepted the money, the case was ended and he got his
costs as well. If the claimant refused the o¬er, the defendant could increase his
payment-in. If the claimant still refused and the case went to trial, the matter
was determined by the outcome. If the claimant recovered more than the
99
A lecture reported in The Lawyer, 13 March 2006, p. 32. Two cases in point were the £500
million claim brought by the liquidators of BCCI against the Bank of England abandoned on
the 256th day of the trial and the £2.6 billion negligence claim brought by Equitable Life
against Ernst & Young thrown out by the trial judge.
100
See Royal Brompton Hospital NHS Trust v. Hammond [2001] EWCA Civ 550, (2001) Times,
11 May.
83 Legal proceedings


amount paid in, he got his damages plus the costs in the normal way. If,
however, he did not recover more than the amount paid in, the court ordered
that he pay the costs of both sides from the date of payment-in.
Pre-CPR the rule was applied in¬‚exibly. The consequence of ˜getting it
wrong™ was extremely serious as failing to beat the sum paid in could result in
the plainti¬ losing the greater part or even the whole of his damages.
The trial court would not be informed of the fact or the amount of any
payment-in, lest its assessment of damages be in¬‚uenced “ though on appeal
sometimes the Court of Appeal might become aware of it. Payment into court
did not apply to small claims.
Technically the system applied only where the case concerned a damages or
other money claim, but the same principle was adapted for use in other cases.
So, if the defendant made an o¬er of settlement ˜without prejudice save as to
costs™, this was treated by the courts in virtually the same way as if it were a
payment into court. (The technique is known as a Calderbank letter after the
case of Calderbank v. Calderbank.101) The Court of Appeal held in Cutts v.
Head102 that the court could look at a letter marked ˜without prejudice™ but
expressly reserving the issue of costs. In a case where a payment into court was
not practicable, this would su¬ce. Where payment-in was practicable, however,
it would still be required to achieve the e¬ect.
For an analysis of payment into court and other economic aspects of the set-
tlement process, see J. Phillips and K. Hawkins, ˜Some Economic Aspects of the
Settlement Process: A Study of Personal Injury Claims™, 39 Modern Law Review,
1976, p. 497.
Woolf on payment into court Lord Woolf, in his Interim Report in June 1995,
made a number of proposals regarding payment into court:103
• That the actual payment-in of money should stop and that instead a
Calderbank letter would su¬ce in all cases. [This was not adopted.]
• An o¬er should be capable of being made either in respect of the whole case
or of speci¬c issues. [This was adopted.]
• The plainti¬ too should be able to make an o¬er to settle “ as was already per-
mitted in a number of Australian and Canadian jurisdictions. [This was
adopted.]
• If the plainti¬™s o¬er was refused and he then was awarded as much or more,
he should be entitled to ˜additional costs™ in the form of costs on the ˜indem-
nity™ basis (see p. 562 below) plus interest at an enhanced rate. The scope of
this recommendation was quali¬ed by the caveat that it should only apply to
˜multi-track cases™ and therefore not to the much larger number of ˜fast track
cases™ because ˜it would detract from the predetermined costs regime which is

101
[1975] 3 All ER 333. For a recent exploration of the topic, see the Court of Appeal™s decision
in Codent Ltd v. Lyson Ltd [2005] EWCA Civ 1835 “ discussed in E. Gold, ˜The Calderbank
E¬ect™, 156 New Law Journal, 21 July 2006, p. 1156.
102 103
[1984] Ch 290. At pp. 194“8.
84 Pre-trial civil proceedings


an integral feature of that track™. [Adopted as to payment of costs on the
indemnity basis and as to interest at an enhanced rate, unless unjust to do so “
limited to 10 per cent over base rate (CPR 36.21). Not adopted as to the pro-
posed limitation to multi-track cases.]
• If the plainti¬ beats the defendant™s o¬er but not his own, Lord Woolf pro-
posed that he should only be entitled to normal costs. [Adopted unless ˜unjust
to do so™.]
• An o¬er by either side should be capable of dealing either with the whole case
or with one or more issues and should be capable of being made even before
the start of proceedings. [This was adopted.]
• Courts should have (and should exercise) a discretion to modify the normal
cost rule in the light of the way in which o¬ers are made “ to take account, for
instance, of sham o¬ers or last minute o¬ers or withdrawals of o¬ers.
The new rules on payment into court (CPR, Part 36) There are several signi¬cant
di¬erences in the post-1999 rules. First, the court can mitigate the harshness of
the traditional rule under which the claimant would automatically be ordered
to pay the costs of both sides if he failed to get a penny more than the amount
paid in by the defendant.
When a claimant fails to get more than the amount paid in, the claimant will
normally still be ordered to pay the defendant™s costs from the latest day for
acceptance of the payment in. (As a rule, twenty-one days from the date the o¬er
is made.) In Neave v. Neave (No 2)104 the Court of Appeal said that the
e¬ectiveness of the Part 36 regime would be undermined if the ordinary conse-
quences of the payment into court rule did not follow. The o¬eror was not to
be deprived of his costs after having beaten the payment-in without good
reason.
However, if the court considers that that is ˜unjust™, it can decide otherwise.
In considering this question, the factors the court can take into account include
the terms of any o¬er, the stage in the process reached, the information avail-
able at the time the o¬er was made and the conduct of the parties with regard
to giving information (CPR 36.21(5)).
Secondly, the new rules provide for a claimant™s o¬er “ stating what he would
accept by way of settlement. If in the event he obtains more, the court can assess
costs on the higher indemnity basis and can allow interest at a rate that is no
more than 10 per cent above bank rate. The rules provide for Part 36 o¬ers
before commencement of proceedings. Such an o¬er would be taken into
account by the court when deciding on costs at the end of the case. If the o¬er
is by the defendant, it must be followed by a Part 36 payment of an equal or
greater amount within fourteen days of service of the claim form.
Part 36 payment applies to money claims. Where the claim is not for money
the defendant can make a Part 36 o¬er (as opposed to a Part 36 payment) with


104
[2003] EWCA Civ 325.
85 Legal proceedings


the same basic rules. This is the equivalent of the ˜Calderbank letter™. The courts
have now accepted, however, that in some circumstances discretion (under CPR
44.3) can be exercised to accept a Part 36 o¬er as if it were a Part 36 payment.105
In Crouch v. King™s Healthcare NHS Trust106 this discretion was exercised in
favour of an NHS trust. The o¬er was made in order to conserve NHS moneys.
If this discretion is extended to other reputable defendants, including insurance
companies, it would amount to implementation by the back door of Lord
Woolf ™s recommendation in his Interim Report that actual payment be no
longer required.
Curiously, Part 36 only applies ˜where at trial™ the claimant fails to beat a Part
36 payment. It therefore does not apply to cases ending with summary judg-
ment. However, in such cases, where appropriate, the court can order indem-
nity costs and enhanced interest (up to 10 per cent).107
Allowing the claimant to make an o¬er of settlement under the CPR has
proved to be a welcome reform. What has proved to be a serious problem sig-
ni¬cantly undermining the value of payment-in is the uncertainty created by
the court™s discretion not to apply the ordinary costs rule when justice so
requires. Commenting on this, Professor A. Zuckerman, in an editorial note in
the Civil Justice Quarterly, wrote:
The result is that one can never be absolutely con¬dent of the consequences of
an o¬er under CPR 36 until after the event . . . The plain fact is that once we
move away from the principle that costs follow the event and from the stipulated
CPR 36 consequences, the costs outcome becomes wide open and virtually
impossible to predict in advance . . . In these conditions litigants ¬nd it di¬cult
to assess the consequences of o¬ers to settle with any certainty and are exposed
not only to an unknowable risk of costs but also to the risk of further and expen-
sive proceedings about costs. On their part the courts have to devote time and
energy to disputes about costs with no certainty that such disputes can be ¬nally
put to rest without one appeal or more. The question therefore arises whether
the CPR 36 procedure continues to serve a useful purpose.108
Cases that illustrate the uncertainty created by the new rule include:
• Ford v. GKR Construction Ltd 109 “ Court of Appeal refused to interfere with
judge™s decision to award the claimant all her costs although she had failed to

105
In an article reviewing the cases in Law Society™s Gazette, 2 December 2004, p. 35 a cartoonist
illustrated the point with the caption: ˜that™s quite plain! If you o¬er to settle and o¬er to
pay into court, you may be treated as having paid in, but costs might be ordered as if you
had not “ or the court might make a di¬erent order!™
106
[2004] EWCA Civ 1332, [2005] 1 All ER 207.
107
Petrotrade Inc v. Texaco Ltd [2001] 4 All ER 853. Lord Woolf, giving judgment, speculated that
Part 36 did not apply probably because the Rule Committee took the view that it should not
apply to ordinary debt collecting. (˜By making a Part 36 o¬er, a claimant could put himself in
a position where indemnity costs and enhanced interest orders could be made when it was not
appropriate™ (para. 61).)
108
˜CPR 36 o¬ers™, 24 Civil Justice Quarterly, 2005, p. 167 at 182 and 183.
109
[2000] 1 WLR 1397, [2000] 1 All ER 802.
86 Pre-trial civil proceedings


beat the sum paid in (£85,000 as against £95,000). She had been reasonable
and the defendants had disclosed their damaging video regarding the
claimant™s mobility very late.
Lloyds Bank Plc v. Parker Bullen110 “ £100,000 paid in, judgment given for

£400,000 but only 80 per cent of costs awarded due to exaggeration of claim.
Kinetics Technology International v. Cross Seas Shipping Corpn (The Mosconici)111

“ Judgment beat payment-in but after conduct was considered the successful
claimant was ordered to pay two-thirds of the defendant™s costs from the date of
payment-in.
Budgen v. Andrew Gardner Partnership112 “ Judgment for £330,000 beat

payment-in by £44,000 but the claimant only got 75 per cent of his costs from
date of payment-in because he lost on a point that took a substantial propor-
tion of the seven-day trial.
Verrechia v. Metropolitan Police Commissioner113 “ Claimant originally sought

£141,500. Later made Part 36 o¬er of settlement of £98,600. Payment-in of
£5,500. Judgment for £53,225. Without giving reasons the judge made no
order of costs on the basis that the case had been ˜an e¬ective draw™. The Court
of Appeal declined to interfere.
Huck v. Robson114 “ Defendant o¬ered 50“50 on liability; claimant made Part

36 o¬er of 95“5. Judge gave claimant 100 per cent but did not give indemnity
costs or interest because the 95“5 split was ˜derisory™. Court of Appeal allowed
the appeal.115
Painting v. University of Oxford116 “ Claimant™s personal injury claim origi-

nally was for over £400,000. Defendants paid in £184,442 but on the basis of
video evidence of the claimant™s injury they got permission to withdrew all
but £10,000. The trial judge awarded the claimant £23,331 but gave her costs
because she had beaten the payment-in. The Court of Appeal allowed an
appeal on the ground that the claimant had greatly exaggerated her claim. She
had to pay all the defendant™s costs from the date of payment-in.


4. Getting the documentary evidence

Disclosure (formerly ˜discovery™) from one™s opponent
Under the old rules (RSC Order 24 and CCR Order 14) the parties had to ˜make
discovery™ after close of pleadings. Making discovery consisted basically of
making available to each other all documents that the party had or had had in
his possession, custody or power which related to any matter in issue.117 The

110 111 112
[2000] Lloyd™s Rep PN 51. [2001] 2 Lloyd™s Rep 313. [2002] EWCA Civ 1125.
113
[2002] EWCA Civ 605, [2002] 3 All ER 385.
114
[2002] EWCA Civ 398, [2002] 3 All ER 263.
115
For comment see G. Exall, Solicitors™ Journal, 29 March 2002, pp. 288“9.
116
[2005] EWCA Civ 161.
117
See Compagnie Financiere du Paci¬que v. Peruvian Guano Co (1882) 11 QBD 55 at 63.
87 Getting the documentary evidence


e¬ect of the Woolf reforms was to retain the concept but considerably to narrow
its scope. (˜Discovery™ is now called ˜disclosure™.)
There were two stages “ ¬rst, making a list of the documents, which had to
be done within fourteen days of the close of pleadings and, secondly, physical
production of the documents or giving an opportunity for their inspection or
copying. The list of documents was in two categories “ those that would be pro-
duced without objection and those discovery of which was opposed by virtue
of a claim of legal professional privilege or public interest immunity (on which
see pp. 90“95 below). Discovery took place automatically, but if the opponent
defaulted on this obligation, an application could be made to the court for
enforcement or appropriate penalty.
The duty to make disclosure as required by the rules lay on both parties and
their lawyers. In Rockwell Machine Tool Co Ltd v. EP Barrus (Concessionaires)
Ltd118 Justice Megarry pointed out that litigants often had little appreciation of
the scope of discovery and the duty of making full disclosure: ˜accordingly it
seems to me necessary for solicitors to take positive steps to ensure that the
client appreciates at an early stage of the litigation, promptly after writ issued,
not only the duty of discovery and its width but also the duty of not destroying
documents which have to be disclosed™.

Woolf on discovery
In his Interim Report Lord Woolf stated that he had received many submissions
that in a minority of complex cases discovery created a signi¬cant problem
in terms of a burden of resources and cost. (There was then and is now no
empirical evidence as to the extent of the problem.) Lord Woolf ™s view was
that discovery should be retained but curbed. He di¬erentiated four categories
of documents: (1) the documents relied on by the parties; (2) adverse docu-
ments which could help the other side; (3) other relevant documents; and
(4) documents which could lead to a train of inquiry that might produce rele-
vant documents. The category that generated most of the problem, he sug-
gested, was the third.
Lord Woolf categorised (1) and (2) as suitable for ˜standard discovery™ and
(3) and (4) as ˜extra discovery™.
With regard to the fast track case, he proposed only standard discovery should
normally be permitted. Additional discovery could be ordered if a case could be
made out. In fast track cases this would be very rare. The parties would have to
certify that they had disclosed all documents required under standard discovery.
In multi-track cases, Lord Woolf suggested that the approach would have
to be adjusted to the needs of the case. The procedural judge would decide
on the scope and extent of discovery at the case management conference
(p. 117 below). Discovery might be ordered on the basis of a rolling pro-
gramme.

118
[1968] 2 All ER 98.
88 Pre-trial civil proceedings


The core of the problem was how to avoid lawyers having to trawl through
all category (3) documents in order to eliminate the possibility of overlook-
ing category (2) documents. The Bar suggested that initial disclosure should
be con¬ned to documents which are ˜capable of being located without
undue di¬culty and expense™. Lord Woolf said that he supported this
approach but he formulated the test slightly di¬erently: ˜initial disclosure
should apply to documents of which a party is aware at the time when the
obligation to disclose arises™.119 It was for consideration whether this formula
should be enlarged to include potentially adverse documents of which a
party would have been aware if he had not deliberately closed his mind to
their existence.

The new rules (CPR, Part 31)
Adopting the Woolf proposals, the CPR create a much more restrictive dis-
closure regime. Disclosure on the fast track and the multi-track are subject
to the principles of necessity and proportionality under the ˜overriding
objective™ (p. 48 above). There is no longer an automatic duty to disclose.
Instead, disclosure is ordered by the court. Whether the court orders it and, if
so, to what extent, depends on the court™s view of what is appropriate having
regard to the amount of money involved, the importance of the case, the com-
plexity of the issues and the ¬nancial position of the parties. It is usually much
more restrictive in fast track cases than in multi-track cases. The court can
dispense with disclosure altogether. Also the parties can agree to dispense with
disclosure “ typically where disclosure has already occurred in pre-action
exchanges.
The normal order is for ˜standard disclosure™. This requires the party to dis-
close documents on which the party relies, or which adversely a¬ect the party™s
case or another party™s case, or which support another party™s case, or which the
party is required to disclose by a relevant Practice Direction. By way of example,
the personal injury pre-action protocol suggests that in a tripping on the
highway case the highway authority should disclose (for the previous twelve
months) the records of inspection, the maintenance records, minutes of meet-
ings where the maintenance or repair policy had been discussed, records of
complaints about the state of the highway and records of other accidents on that
stretch of the road.
The de¬nition of ˜standard disclosure™ represented something of a retreat
from Lord Woolf ™s Interim Report which proposed that it should only cover
documents that ˜to a material extent™ adversely a¬ected a party™s case or sup-
ported the case of another. The dropping of the words ˜to a material extent™ rep-
resented an enlargement of what must be disclosed. On the other hand, the
new requirement of disclosure is much narrower than the old rule. Highly
material documents that previously would have been disclosed now need not

119
Interim Report, p. 171, para. 34.
89 Getting the documentary evidence


be disclosed. (The practitioner™s bible Hollander on Disclosure stated in 2003
that the profession was acting much as before ˜as though the change is too
radical for lawyers to believe it has really taken place and thus they are assum-
ing it never did occur™.120) The critical di¬erence is that whereas previously one
had to disclose anything which had the potential of leading to something that
could assist the other side, now disclosure is only required if the document itself
supports or adversely a¬ects the case, but, as Hollander says, very few docu-
ments have the characteristic of the ˜smoking gun™. The category (3) ˜back-
ground™ documents which now need not to be disclosed are often crucial.
(˜Usually, these documents do not in themselves support or adversely a¬ect the
case of either party; they are simply the central or core documents, those which
are directly relevant to the issues in the case. Those are the “background” doc-
uments. They can be vital™.121)
As has been seen, the original suggestion was that disclosure was only
required with regard to documents of which a party was ˜aware™, but the new
rules introduced a duty to search. A party has to conduct ˜a reasonable search™
for documents which are or have been in the party™s control. In determining the
extent of a reasonable search, account is to be taken of the number of docu-
ments involved, the nature and complexity of the proceedings, the ease and
expense of retrieval of any document and the signi¬cance of any document
likely to be located during the search. The Practice Direction accompanying
Part 31 of the CPR says it may be reasonable to decide not to search for docu-
ments coming into existence before a certain date or to limit a search to partic-
ular categories of documents (Part 31, Practice Direction, para. 2).
The duty to disclose is a continuing one. If a party ¬nds out about a new dis-
closable document there is a duty to inform the other party immediately.122
Disclosure has to be accompanied by a ˜disclosure statement™ which is sup-
posed to be signed not by the solicitor but by the party personally, saying:
I state that I have carried out a reasonable and proportionate search to locate all
the documents which I am required to disclose under the order made by the
court on . . . I did not search for documents: (1) predating . . .; (2) located else-
where than . . .; (3) in categories other than . . . I certify that I understand the
duty of disclosure and to the best of my knowledge I have carried out that duty.
I certify that the list . . . is a complete list of all documents which are or have
been in my control and which I am obliged under the order to disclose.123
Where the party making the statement is a ¬rm or a company, the disclosure
statement has to be made by someone who holds an o¬ce or position which
entitles him to make it “ which does not include the ¬rm™s solicitor.
In practice the requirements that the disclosure statement be signed by the
client rather than by the solicitor and that it gives details of the extent of the
searches that were and were not carried out are widely ignored, but the courts

120 121
C. Hollander QC, Documentary Evidence (8th edn, 2003) para. 9“12. Ibid, para. 9“16.
122 123
Vernon v. Bosley (No 2) [1999] QB 18, [1997] 1 All ER 614. Annex to PD 31.
90 Pre-trial civil proceedings


sometimes insist that the rules, though tiresome and even unreasonable, be
followed.124
If a party thinks that the other side™s disclosure is inadequate, the court can
be asked to order speci¬c disclosure or speci¬c inspection or even a speci¬c
search (CPR 31.12). In deciding whether to make such an order the court will
take into account all the circumstances, and in particular, the overriding objec-
tive, that the means should be proportionate. By the same token, refusal to
permit inspection can be based not only as before on the grounds of legal pro-
fessional privilege (see pp. 90“94 below) or public interest immunity (see
pp. 94“95 below), but also on the ground that to permit inspection would be
disproportionate. An unsuccessful application will result in an order to pay
costs, summarily assessed and payable immediately.
As pre-Woolf, disclosure does not apply in small claims cases. The standard
directions on that track merely require each party to supply the court and the
other parties with copies of all documents, including experts™ reports, to be
relied on, not less than fourteen days before the hearing and to bring the origi-
nal documents to the hearing itself.
The main sanction for failing to comply with the disclosure rules is that the
party will not be able to rely on the document without permission of the court
(CPR 31.21).
In their study of the Woolf reforms Professors Peysner and Seneviratne said:
˜Our interviewees reported that the disclosure regime was working well and
speci¬c disclosure applications were much reduced from the position before the
introduction of the CPR™. The exception was pre-issue disclosure applications
made when the prospective defendant failed to make available material required
to be produced by the pre-action protocols. Such applications permitted the
claimant to see whether he had a case.125

No disclosure if legal professional privilege applies
It is important that clients should be able to communicate fully with their
legal advisers without fear that these communications will become known
to the other side. Legal professional privilege is therefore an exception to the
principle of disclosure. It applies equally in criminal proceedings. Where it
exists, legal professional privilege is absolute and is therefore not subject to
the weighing of competing public interests “ R v. Derby Magistrates™ Court,
ex p B.126 In Ataou the Court of Appeal had held that the court must under-
take a balancing exercise in deciding whether privilege applied where the
issue was someone™s innocence being established. The House of Lords unan-
imously held that even in that situation the privilege was absolute. The

124
J.M. Collins, ˜Disclosure Pitfalls . . . and How to Avoid them™, 154 New Law Journal, 23
September 2004, p. 1385. Collins suggests that the rule is misconceived since the client does
not know what documents are relevant or irrelevant and has no idea whether the list drawn
125
up by the solicitor complies with the rules. Note 96 above at para. 3.5.
126
[1996] AC 487 overruling Ataou [1988] 2 All ER 321.
91 Getting the documentary evidence


principle cannot be derogated from, for instance, by provisions in the
CPR.127 As a corollary, lawyers are generally under a duty to keep the client™s
a¬airs con¬dential.
As will be seen (p. 229 below) legal professional privilege does not apply to
communications that take place with the intention by anyone to further a crim-
inal purpose. There are also circumstances where the duty to keep the client™s
a¬airs con¬dential is overridden by the lawyer™s statutory duty to report “
notably with regard to drug tra¬cking and money laundering. The Proceeds of
Crime Act 2002 (PCA) appeared to go much further by laying on the lawyer a
duty to report suspicions about the client™s possible criminal conduct gener-
ally.128 The interpretation given to the PCA by Dame Butler-Sloss in P v. P129 had
extraordinary rami¬cations. (In a letter to The Times a member of the Law
Society™s Family Law Committee stated: ˜if a client seeking a divorce tells her
solicitor that her husband insisted on paying a tradesman in cash “to save VAT”,
their entire assets, as they include assets deriving from evasion of VAT, are
regarded as the proceeds of crime™. The o¬ence would be not only that of the
spouses but of their solicitors. The only way for the lawyers to avoid commit-
ting the o¬ence would be to make ˜an authorised disclosure™ to one of the spec-
i¬ed authorities.) It is arguable that these provisions, as well as being unduly
burdensome, may be incompatible with the European Convention on Human
Rights.130 However, in Bowman v. Fels131 the Court of Appeal held that, in the
absence of express words to the contrary, the legislature could not have intended
to override legal professional privilege. The duty to report created by s. 328 of
the PCA did not apply to the ordinary conduct of litigation or any step taken by
lawyers in furtherance of litigation. Lord Justice Brooke cited with approval the
opinion of Lord Scott that ˜communications between clients and lawyers . . .
should be secure against the possibility of any scrutiny from others, whether the
police, the executive, business competitors, inquisitive busy-bodies or anyone
else™.132
Legal professional privilege applies to con¬dential communications between
lawyers and their clients for the purposes of getting or giving legal advice
whether or not in the context of litigation (˜advice privilege™) and to con¬dential

127
See General Mediterranean Holdings v. Patel [2000] 1 WLR 272 where the Divisional Court
held that CPR 48.7(3) giving the court power to order the disclosure of a privileged document
for the purposes of a wasted costs order was ultra vires.
128
If the lawyer knows that the transaction will constitute an o¬ence under ss. 327“329 of the
Proceeds of Crime Act 2002 he may disclose communications about the transaction to his
Money Laundering Reporting O¬cer (MLRO) and probably must do so to avoid committing
an o¬ence himself. He should equally report to the MLRO where he merely suspects that the
transaction may constitute a money laundering o¬ence. In making such a report the lawyer
would be protected by the PCA 2002, s. 338(4).
129
P v. P Ancillary Relief Proceeds of Crime [2003] EWHC Fam 2260, [2003] 4 All ER 843. (˜An
illegally obtained sum of £10 is no less susceptible to the de¬nition of “criminal property”
130
than a sum of £1 million™ [56].) Family Law, December 2003, p. 909.
131
[2005] EWCA Civ 226, [2005] 4 All ER 609.
132
Three Rivers DC v. Bank of England (No 6) [2004] UKHL 48, [2004] 3 WLR 1274 at [34].
92 Pre-trial civil proceedings


communications between lawyers, clients and third parties, with a view to liti-
gation (˜litigation privilege™). It covers instructions and briefs to counsel and
counsel™s opinions. It applies not only to consultations between a lawyer and his
clients regarding the client™s legal rights and obligations, but also legal advice and
assistance to a client who is participating in an o¬cial inquiry.133
Privilege does not apply to documents obtained by solicitors for the purposes
of preparing for litigation if the documents did not come into existence for the
purposes of the litigation.134
Privilege also does not attach to a communication passing between a party
and his non-professional agent or a third party, unless the communication was
made after a decision which would lead to solicitors being instructed to start or
defend legal proceedings.135
In Re L (a minor)136 the House of Lords held by three to two that although
legal professional privilege was absolute and could not be overridden even in
wardship and care proceedings involving children, it did not cover a report by
a pathologist prepared in the course of care proceedings at the request of the
child™s mother which the judge held could be disclosed to the police. There was
a clear distinction between the privilege attaching to communications between
solicitor and client and that attaching to reports by third parties prepared on the
instructions of a client for the purposes of litigation. Litigation privilege had no
place in care proceedings which were non-adversarial.137
Normally, if an original document does not have privilege, a photocopy
likewise does not have privilege even if the photocopy came into existence
for the purpose of seeking legal advice,138 but if a solicitor has exercised skill

133
Three Rivers DC v. Bank of England (No 6) [2004] UKHL 48, [2004] 3 WLR 1274. The House
of Lords reversed the Court of Appeal™s decision which had con¬ned ˜advice privilege™ to
communications regarding legal rights and obligations and that privilege did not apply where
the advice concerned an o¬cial inquiry. However, the House of Lords did not express a view
about the Court of Appeal™s decision that the client on the facts of that case was a small unit in
the Bank of England so that advice privilege did not attach to other employees of the bank
even though they were engaged in gathering material relevant to the inquiry. For a
commentary on the decision, see N. Andrews, ˜Legal Advice Privilege™s Broad Protection “ the
House of Lords in Three Rivers (No 6)™, 24 Civil Justice Quarterly, 2005, pp. 185“93.
134
Ventouris v. Mountain, The Italia Express [1991] 1 WLR 607, [1991] 3 All ER 472.
135
Alfred Crompton Amusement Machines Ltd v. Customs and Excise Comrs (No 2) [1974] AC 405.
136
[1997] AC 16, [1996] 2 All ER 78.
137
For criticism of the distinction drawn by the majority in Re L (a minor) between litigation
privilege and advice privilege, see C. Passmore, ˜The Future of Legal Professional Privilege™,
International Journal of Evidence and Proof, 1999, vol. 3, no. 2, pp. 71“86. Passmore argued that
this is not an isolated exception to the general principle. He gave a series of other recent
examples in case law and elsewhere, including money laundering legislation and CPR, r. 35(10)
(an expert™s report ˜must state the substance of all material instructions, whether written or
oral on the basis of which the report was written™ and the instructions ˜shall not be privileged™).
He suggested that the time was ripe for debate as to the extent to which the rules on privilege
need re¬nement to meet new policy objectives based on the principle of ˜cards on the table™.
See also D. A. Ipp, ˜Lawyers Duties to the Court™, 114 Law Quarterly Review, 1998, 63 at 68“76.
138
Sumitomo Corpn v. Credit Lyonnais Rouse Ltd [2001] EWCA Civ 1152, [2002] 4 All ER 68
overruling Dubai Bank Ltd v. Galadari (No 7) [1992] 1 All ER 658.
93 Getting the documentary evidence


and judgment in selecting the document for consideration it may attract
privilege.139
Where a document is prepared for a dual purpose, the test of whether it is
privileged is what was the dominant purpose. In Waugh v. British Railways
Board140 privilege was denied to a British Railways internal inquiry as to the cir-
cumstances of a fatal accident. The report had two purposes “ the prevention
of accidents for the future and assistance in dealing with the particular claim.
The House of Lords held that its dominant purpose was the prevention of acci-
dents and it therefore was not privileged.141
The privilege is that of the client and only the client can waive it. It is not lost
because the client has died.142 If, however, a copy of the document has somehow
(even through improper means) come into the possession of the other side, evi-
dence of its contents can be given unless the court can be persuaded to grant an
injunction against such use on the ground that it would involve breach of con-
¬dence.143
Material supplied by the instructing party to an expert as the basis on which
he is asked to advise is to be treated as part of the instructions.144 CPR 35.10(4)
states that although it is it is technically not privileged, the court will only order
disclosure if satis¬ed that there are reasonable grounds for considering that the
expert™s statement as to the substance of the instructions he has received are
inaccurate or incomplete.145
In the case of expert witnesses, legal professional privilege attaches to con¬-
dential communications between the solicitor and the expert, but it does not
attach to the chattels or documents on which the expert based his opinion, or
to the independent opinion of the expert himself.146 This rule applies to crim-
inal as well as to civil cases. In a criminal trial the Crown can therefore sub-
poena as a witness a handwriting expert whom the defence has consulted but
does not wish to call as a witness, and is also entitled to the production of doc-
uments sent to the expert for examination and on which he based his opinion
provided they are not covered by legal professional privilege. In R v. King147
Lord Justice Dunn said: ˜it would be strange if a forger could hide behind a
claim of legal professional privilege by the simple device of sending all the
incriminating documents in his possession to his solicitors to be examined by
an expert™.

139
Barclays Bank Plc v. Eustice [1995] 4 All ER 511, CA.
140
[1980] AC 521, [1979] 2 All ER 1169, HL.
141
See similarly Peach v. Metropolitan Police Comr [1986] 2 All ER 129.
142
Bullivant v. A-G of Victoria [1901] AC 196.
143
Calcraft v. Guest [1898] 1 QB 759; Goddard v. Nationwide Building Society [1987] QB 670,
[1986] 3 All ER 264; Guinness Peat Properties Ltd v. Fitzroy Robinson Partnership [1987] 1
WLR 1027, [1987] 2 All ER 716; and British Coal Corpn v. Dennis Rye Ltd (No 2) [1988] 1
WLR 1113, [1988] 3 All ER 816.
144
Lucas v. Barking, Havering and Redbridge Hospitals NHS Trust [2003] EWCA Civ 1102, [2003]
145
4 All ER 720. Jackson v. Marley Davenport Ltd [2004] EWCA Civ 1225.
146 147
Harmony Shipping Co SA v. Davis [1979] 3 All ER 177 at 181. [1983] 1 All ER 929.
94 Pre-trial civil proceedings


See generally I.H. Dennis, The Law of Evidence (3rd edn, Sweet and Maxwell,
2006) Ch. 10; A. Zuckerman, Civil Procedure (Lexis Nexis, 2006) Ch. 14.

No disclosure if public interest immunity applies
The second main ground of immunity from disclosure is where it is contrary to
the public interest. Such immunity may arise because of the contents of the doc-
ument or because the document belongs to a class or category which has immu-
nity regardless of its contents.
It is for the courts, not the executive, to determine whether a document has
immunity. This crucial issue was settled in 1968 by the House of Lords in
Conway v. Rimmer.148
Before deciding on a claim for public interest immunity the court can
call for the actual documents in question and can look at them without
showing them to the party applying for access to them, but in Air Canada
v. Secretary of State for Trade (No 2) the House of Lords held that the court
should only do this if the party applying for discovery had shown that the
information in the documents was likely to assist his case, in the sense that
there was a reasonable probability that it would “ not merely a speculative
belief that it would do so.149 See also Balfour v. Foreign and Commonwealth
O¬ce150 where the Court of Appeal held that once there was an actual or
potential risk to national security demonstrated by an appropriate certi¬-
cate by a minister the court should not exercise its right to inspect the
documents.151
There have been many examples over the years of public interest immunity.
In Alfred Crompton Amusement Machines v. Customs and Excise Comrs (No 2)152
the House of Lords gave protection to information obtained con¬dentially by
the Crown for the purposes of valuing goods for tax purposes; in Gaming Board
for Great Britain v. Rogers153 the House of Lords protected con¬dential inquiries
by the Gaming Board from the police as to applicants; in D v. National Society
for the Prevention of Cruelty to Children154 the House of Lords upheld a claim to
avoid disclosure by NSPCC of the name of an informant about child cruelty
where the mother wanted to sue the informant or the NSPCC;155 in Williams v.

148 149 150
[1968] AC 910. [1983] 1 All ER 910. [1994] 1 WLR 681, [1994] 2 All ER 588.
151
See generally N. Zaltsman, ˜Public Interest Immunity in Civil Proceedings: Protecting the
Supply of Information to the Public Authority™, Public Law, 1984, p. 423.
152 153 154
[1974] AC 405. [1973] AC 388. [1978] AC 171.
155
See also Burmah Oil Co Ltd v. Bank of England [1980] AC 1090, [1979] 3 All ER 700, HL in
which immunity was granted in relation to documents exchanged between Government
ministers and the Bank of England regarding the price to be paid by the Treasury for the
purchase of Burmah Oil shares. In Neilson v. Laugharne [1981] 1 All ER 829 and Makanjuola v.
Metropolitan Police Comr [1992] 3 All ER 617 immunity was allowed for statements given to the
police in connection with an inquiry into a complaint against the police, but these decisions
were overturned by the House of Lords in R v. Chief Constable of the West Midlands Police, ex p
Wiley [1995] 1 AC 274, [1994] 3 All ER 420. The House of Lords held that a class claim to
immunity in such cases was unjusti¬ed since it tended to defeat the object it was designed to
achieve. By contrast, see Taylor v. Anderton [1995] 1 WLR 447, [1995] 2 All ER 420, CA.
95 Getting the documentary evidence


Home O¬ce156 immunity was refused to hundreds of pages of internal Home
O¬ce documents relating to the establishment of ˜control units™ in prisons; in
Evans v. Chief Constable of Surrey157 the Divisional Court said there could be no
disclosure of reports from the police to the DPP about a murder in which
the applicant was implicated; in Re HIV Haemophiliacs, Litigation158 the
Department of Health was ordered by the Court of Appeal to hand over docu-
ments for which public interest immunity had been claimed regarding the
plainti¬s™ infection with AIDS. The 900 or so plainti¬s had shown a prima facie
case against the department in negligence and the claim to immunity was over-
ridden by the public interest in the full and fair trial of the plainti¬s™ claim. (This
decision led to an out-of-court aggregate settlement of £42 million for the
plainti¬s.)
The doctrine applies also to criminal cases. A spectacular illustration was
the so-called Matrix Churchill case in which the trial judge, Judge Smedley,
quashed public interest immunity certi¬cates served by the prosecution,
designed to suppress evidence about intelligence sources, information held
by the Security Service (MI5) and the Secret Intelligence Service (MI6) and
high level inter-departmental and ministerial contact over a licence applica-
tion to export material for a super-gun to Iraq. The judge™s decision led to the
collapse of the prosecution against the executives in the machine tool
company who had been charged with deception in obtaining export
licences.159 It led also to the establishment of the ˜arms for Iraq™ inquiry by
Lord Justice Scott.

Disclosure from someone who is not (or is not yet) a party
Discovery was traditionally only available against the person who was the object
of the proceedings. Information or documents in the possession of third parties
could normally only be obtained by issuing a subpoena duces tecum requiring
them to come to the trial with the documents.
The objection that discovery only applied if proceedings had actually started
and only applied to parties was considered by the Winn Committee in 1968. It
recommended that discovery by order of the court should be available where a
claim in respect of personal injuries or in respect of someone™s death was ˜likely
to be made™. The Administration of Justice Act 1970, s. 31 implemented this rec-
ommendation, which only applied, however, to actions arising out of personal
injuries or death. The power was to be found in s. 33 of the Supreme Court Act
1981.
The Winn Committee proposed a second exception to the general rule with
regard to claims for damages arising out of personal injuries or death. This was

156 157
[1981] 1 All ER 1151. [1988] QB 588, [1989] 2 All ER 594.
158
[1990] NLJR 1349.
159
See A. Tomkins, ˜Public Interest Immunity after Matrix Churchill™, Public Law, 1993,
pp. 650“68. For a detailed account of the case, see D. Leigh, Betrayed: The Real Story of the
Matrix Churchill Trial (Bloomsbury, 1993).
96 Pre-trial civil proceedings


to allow a party to seek an order for discovery against a third party who was
holding relevant documents. This recommendation was implemented in s. 32
of the Administration of Justice Act 1970 and was to be found in s. 34 of the
Supreme Court Act 1981 and RSC Order 24, r. 7A.
Lord Woolf proposed that pre-action disclosure both from likely parties
and from non-parties should be extended to all cases and the Civil Procedure
Act 1997, s. 8160 gave e¬ect to this recommendation (see CPR, rr. 31.16
and 17).
It is not necessary to establish on a balance of probabilities that the evidence
will support the applicant™s case or undermine the opponent™s case “ only that
it may well do so.161 Such applications are now common, especially in personal
injury cases, and the costs of a successful application are normally recoverable
by the claimant.162

Medical records
The Access to Health Records Act 1990 established a right for a patient, or
someone authorised to apply on his behalf, to get medical records created after
November 1990. Note also the Data Protection Act 1984 which gave a person a
right of access to information about him which is held in computerised form,
but the right to get data on computer is quali¬ed by secondary legislation which
states that there is no right to inspect a health record if access would be likely to
cause serious harm to the physical or mental health of the applicant or would
be likely to disclose another person™s identity.163
The pre-action protocols on personal injury claims and medical negligence
claims (p. 61 above) had a wider provision for access to medical records. (˜It is
Department of Health policy that patients be permitted to see what has been
written about them, and that healthcare providers should make arrangements
to allow patients to see all their records, not only those covered by the Access
to Health Records Act 1990™.) Use of the forms was said to be entirely volun-
tary and did not prejudice any statutory rights. The aim was ˜to save time and
costs for all concerned for the bene¬t of the patient and the hospital and in the
interests of justice. Use of the forms should make it unnecessary in most cases
for there to be an exchange of letters or other enquiries™ (Practice Direction,
Annex B).
The Data Protection Act 1998, which came into force in 1999, replaced the
Access to Health Records Act 1990. It broadly made similar access provisions “
though s. 8(2)(a) provides a new exemption where supply of the information
would involve ˜disproportionate e¬ort™.

160
Also the Civil Procedure (Modi¬cation of Enactments) Order 1998, SI 1998/2940.
161
Three Rivers District Council v. Bank of England (No 4) [2002] EWCA Civ 1182, [2002] 4 All
ER 881.
162
J. Surti and R. Strong, ˜Defensive Pre-action™, 155 New Law Journal, 21 October 2005,
p. 1569.
163
Data Protection (Subject Access Modi¬cation) (Health) Order 1987, SI 1987/1903.
97 Getting the documentary evidence


Disclosure from a third party to correct wrongdoing (the Norwich Pharmacal
principle)
The courts have developed a further exception to the general rule, under
which discovery could be ordered against a third party who has information
which is needed to deal with wrongdoing. Thus in Norwich Pharmacal Co v.
Customs and Excise Commissioners164 the House of Lords held that the
Customs authorities had to disclose the names of persons importing materi-
als allegedly in breach of the plaintiªs patent because dishonest traders did
not deserve protection. Lord Reid said that ˜if through no fault of his own a
person gets mixed up in the tortious acts of others so as to facilitate their
wrongdoing he may incur no personal liability but he comes under a duty to
assist the person who has been wronged by giving him full information and
disclosing the identity of the wrongdoer™. The same principle was applied by
the House of Lords in British Steel Corpn v. Granada Television Ltd165 to order
Granada to hand over to British Steel the name of the ˜mole™ who had passed
it con¬dential documents relating to the company™s handling of the steel
strike. Granada, like the Customs in Norwich Pharmacal, was an innocent
third party, but the courts ordered discovery in order to permit the plainti¬ to
get a remedy with regard to wrongdoing.
The same doctrine was applied in Bankers Trust Co v. Shapira166 when the
court ordered a bank to reveal the details of a customer™s account in order to
give e¬ect to a defrauded plainti¬™s equitable right to trace his money. By con-
trast, see Arab Monetary Fund v. Hashim (No 5)167 “ disclosure by a non-party
was not ordered because the potential bene¬t was outweighed by the detriment.
Where the power to order such disclosure concerns the press it raises the issue
of freedom of expression protected by s. 10 of the Contempt of Court Act 1981
and Article 10 of the European Convention on Human Rights. In Ashworth
Hospital Authority v. MGN Ltd168 the House of Lords upheld the Court of
Appeal™s decision ordering the Daily Mail to reveal to the hospital the name of
the person who supplied a journalist with information about the notorious
˜Moors murderer™ Ian Brady. The Law Lords concluded that it did not matter if
the wrongdoing was tortious or in breach of contract. In the Court of Appeal
Lord Woolf went further in suggesting, obiter (at [53]), that it may extend to
criminal wrongdoing “ but this con¬‚icts with the Court of Appeal™s ruling in
Interbrew SA v. Financial Times169 in which ¬ve media organisations were
ordered to hand over to the company a leaked document about a contemplated
take-over. In Interbrew the Court of Appeal said that if the purpose of the leak
was to bring wrongdoing to public notice it would deserve a high degree of pro-
tection, but if the purpose was to wreck legitimate commercial activity it would
be less deserving of protection. These two cases also establish that a Norwich

164 165 166
[1974] AC 133. [1981] AC 1096. [1980] 1 WLR 1274, [1980] 3 All ER 353.
167 168
[1992] 2 All ER 911. [2002] UKHL 29, [2002] 1 WLR 2033, [2002] 4 All ER 193.
169
[2002] EWCA Civ 274, [2002] 2 Lloyd™s Rep 229.
98 Pre-trial civil proceedings


Pharmacal order can be made even where the applicant does not intend to
pursue court action against the wrongdoer.170
In X v. Y171 the court refused to order a reporter to disclose the source of his
story. A ¬ne for contempt of court on the paper and a permanent injunction
stopping the paper publishing the information was su¬cient. In Goodwin both
the Court of Appeal and the House of Lords had held that a journalist had to
pay a ¬ne of £5,000 for contempt of court for refusing to disclose the source of
an article, but the European Court of Human Rights held that this constituted
a violation of Article 10 of the Convention. The interests of a democratic
country in having a free press outweighed the company™s interest in tracking
down the source of the leak to the journalist.172

The ˜mere witness™ rule
The person against whom the order is made must somehow be involved. It
would not be possible under the Norwich Pharmacal doctrine, for instance, to
order a passer-by who saw a road accident to reveal the name prior to the
hearing of the action. He would be a ˜mere witness™. This rule was prayed in aid
in Harrington v. North London Polytechnic173 by lecturers at the polytechnic
who had been ordered by the court to disclose the names of picketing students.
The action was brought by Patrick Harrington, a member of the National
Front, after he had been prevented from pursuing his studies by other students
who objected to his presence. He obtained an injunction against the polytech-
nic, but when the injunction was ignored by picketing students, Harrington
asked for a further order requiring certain teachers to identify persons in pho-
tographs taken of the picketing. The lecturers claimed they were not parties to
the action and that they should be protected from the order by the ˜mere
witness™ rule. They also said that an order against them would be contrary to
public policy since it would damage the special relationship between sta¬ and
students. The Court of Appeal held that they were not ˜mere witnesses™. In fact
they were not witnesses at all since they had not been present at the time of the
picketing. They could be made subject to such an order as employees of the
polytechnic, but since they had not been given a chance to put their argument,
the case was sent back to the High Court for proper argument on the public
policy aspects.

Subsequent use of disclosed document
The rule used to be that disclosure was made subject to an undertaking that the
document disclosed would not be used for any ˜improper, collateral or ulterior
purpose™ (RSC Order 24, r. 14A). This has now been replaced by CPR 31.22
which states that a document that has been disclosed may only be used for the

170
See M. Amos, ˜A Storm Brewing™, 152 New Law Journal, 9 August 2002, p. 1230.
171 172
[1988] 2 All ER 648. Goodwin v. United Kingdom (1996) 22 EHRR 123.
173
[1984] 3 All ER 666.
99 Getting evidence from witnesses


purpose of the proceedings in which it is disclosed except where ˜(a) the doc-
ument has been read to or by the court, or referred to, at a hearing which has
been held in public; (b) the court gives permission; or (c) the party who dis-
closed the document and the person to whom the document belongs agree™.
Even where a document has been read by or to the court or referred to at a
public hearing, the court can make an order restricting or prohibiting its use
(CPR 31.22(2)). Documents read by the judge out of court before the hearing
on which he based his decision were held to be documents referred to at a
hearing held in public.174


5. Getting evidence from witnesses

There is no property in a witness
The formal position is that since ˜there is no property in a witness™ one can
approach anyone and ask for a statement about the matter in issue “ including
someone who is likely to give evidence for one™s opponent, but the person
approached is not under an obligation to co-operate. If he is from the oppo-
nent™s camp, he will almost certainly decline and, in the improbable event that
he might be willing to give a statement, the opponent™s lawyers would advise
him not to do so. Even the neutral witness may decline, whether because he has
already given a statement to the other side, or because he simply does not feel
like it or for any other reason. There is no procedure that can compel the poten-
tial witness to give a statement. He can of course be compelled to give evidence
at the trial by serving him with a subpoena, but no sensible lawyer would call a
witness at the trial unless he had previously found out what the witness was
going to say, so that is not a practical option.
The rule that there is no property in a witness is set out in the Law Society™s
Guide to the Professional Conduct of Solicitors:175

21.10 Interviewing Witnesses Principle
It is permissible for a solicitor acting for any party to interview and take
statements from any witness or prospective witness at any stage in the proceed-
ings, whether or not that witness has been interviewed or called as a witness by
another party.
1. Principle 21.10 stems from the fact that there is no property in a witness
and applies both before and after the witness has given evidence at the hearing.
2. A solicitor must not, of course, tamper with the evidence of a witness or
attempt to suborn the witness into changing evidence. Once a witness has given

174
See SmithKline Beecham Biologicals SA v. Connaught Laboratories Inc [1999] 4 All ER 498, CA,
a decision under former RSC Order 24, r. 14A. For considerations material to an order
maintaining con¬dentiality after the trial has ¬nished, see Lily Icos v. P¬za Ltd (No 2) [2002]
EWCA Civ 2, [2002] 1 WLR 2253. See also S.M.C. Gibbons, ˜Protecting Documents Disclosed
under Pre-action Protocols against Subsequent Use™, 21 Civil Justice Quarterly, 2002,
175
pp. 254“70. Online version February 2006 “ www.lawsociety.org.uk.
100 Pre-trial civil proceedings


evidence, the case must be very unusual in which a solicitor acting for the other
side needs to interview that witness without seeking to persuade the witness to
change evidence . . .
3. A solicitor should be aware that in seeking to exercise the right to interview
a witness who has already been called by the other side or who to the solicitor™s
knowledge is likely to be called by them, the solicitor may well be exposed to the
suggestion that he or she has improperly tampered with the evidence. This may
be so particularly where the witness subsequently changes his or her evidence.
4. In order to avoid allegations of tampering with evidence it is wise in these
circumstances for such solicitor to o¬er to interview the witness in the presence
of a representative of the other side. If this is not possible, a solicitor may record
the interview, ask the witness to bring a representative, and ask the witness to
sign an additional statement to the e¬ect that the witness has freely attended the
interview and has not been coerced into giving the statement or changing his or
her evidence.
In practice, in civil cases solicitors are very chary about even approaching a
witness associated with the other side for fear of running foul of the prohibition
on tampering with the evidence. By contrast, in criminal cases both the prose-
cution and the defence may ¬nd it necessary to interview the same witnesses. It
was held to have been contempt of court for the police deliberately to impede
inquiries by a private investigator working for the defence who was trying to
¬nd potential alibi witnesses in a murder case. The accused™s alibi was that he
stayed overnight at a hostel with three ˜travellers™ known to him only by their
¬rst names. The police had asked the hostel management to ensure that the
hostel sta¬ not talk to the investigator.176
The rule that there is no property in a witness applies also to expert witnesses.
This was established by the Court of Appeal in Harmony Shipping Co SA v.
Davis.177 The plainti¬s approached a handwriting expert to advise on the
authenticity of a document the genuineness of which was crucial to their case.
The expert advised that the document was not genuine. Subsequently he was
approached for advice by the other side. Not realising that he had already
advised the plainti¬s in the same case, he advised the defendants that the doc-
ument was not genuine. Later he realised what had happened and told the
defendants that he could not accept any further instructions in the matter from
them. The defendants, who wanted him to testify as to the genuineness of the
document, issued a subpoena requiring him to attend to give evidence. The
plainti¬s tried to have the subpoena set aside on the ground that there was an
express or implied contract that the expert would not advise both sides and that
the defendants were therefore not able to call him.The Court of Appeal unani-
mously rejected this contention. The court held that the rule that there was no
property in a witness applied to experts as much as to witnesses of fact. The only
di¬erence was that an expert could not be required to give evidence about
matters that were covered by legal professional privilege. Insofar as he had been
176 177
Connolly v. Dale [1996] QB 120. [1979] 3 All ER 177.
101 Getting evidence from witnesses


told things in con¬dence by the solicitors, such information was privileged and
could not be made the subject of testimony, but anything not covered by legal
professional privilege was available to the defendants as much as to the
plainti¬s.178
In the United States, there is a procedure to permit a party to take a pre-trial
statement from a potential witness. The rule that there is no property in a
witness therefore has much more meaning there. Each party can require not
only the other party but also anyone with knowledge of relevant facts to answer
questions in an oral examination called ˜taking a deposition™ with regard to
those facts and to produce all relevant documents. Any party may take the tes-
timony of such a person either by way of oral examination or written inter-
rogatories. Under the Federal Rules of Civil Procedure a witness, including a
party, must give names, addresses and other details of all witnesses known to
him. If the pre-trial examination of a witness is oral, his testimony can be used
to impeach the witness (for example, to challenge the evidence that he gives at
trial). For a graphic illustration of the American system in action, see R. Rashke,
The Killing of Karen Silkwood.179 The book, which was the basis of a ¬lm star-
ring Meryl Streep, describes the case brought by Miss Silkwood™s estate against
her employers, alleging that her death was due to its negligence with regard to
contamination by plutonium. Most of the inquiries made by the lawyers were
pursued through the means of pre-trial depositions. In the end there were over
6,000 pages of such depositions. The case ended with a verdict awarding
damages of $10 million. It is di¬cult to imagine that the case could have had a
successful outcome in England, where there is no equivalent procedure permit-
ting a party to require a potential witness of fact to answer questions pre-trial.


Interim remedies
The Civil Procedure Rules, like the old rules, provide for a variety of interim
remedies that can be obtained before the hearing of the case. CPR 25(1) lists
nineteen di¬erent kinds of interim remedies, of which perhaps the best known
is the interim injunction. They include interim declarations, orders for the
inspection or preservation of relevant property or for information to be pro-
vided. The procedure for obtaining an interim remedy is dealt with in CPR, Part
25. (It provides for application by telephone in urgent cases “ though this facil-
ity is not available to litigants in person, only to lawyers! (Practice Direction 25,
para. 4.5(5)).)
Special rules apply to two particularly formidable interim remedies “ for
freezing assets and for searching premises. (They have been described as the
˜two nuclear weapons of the law™.) Because of their fearsome character they can
only be granted by High Court judges or ˜any other judge duly authorised™
(Practice Direction 25, para. 1.1).

178 179
See also Re L [1996] 2 All ER 78, HL. Sphere Books, 1983.
102 Pre-trial civil proceedings


A ˜freezing order™ (formerly called a Mareva injunction) prevents the other
party from transferring his assets abroad or disposing of them so as to defeat
the plaintiªs hope of satisfying any judgment he may ultimately win. The
power derives from a 1975 case, Mareva Cia Naviera SA v. International
Bulkcarriers SA.180 The Court of Appeal held that an injunction to prevent assets
from being removed could be granted in any case in which the court thought it
to be just or convenient.181 The new jurisdiction was recognised in the Supreme
Court Act 1981, s. 37, which made it clear that such orders can be made regard-
less of whether the subject of the order is domiciled, resident or even merely
present within the jurisdiction.
Section 37(1) of the 1981 Act empowered the High Court to grant an injunc-
tion in all cases in which it appears to the court to be just and convenient to do
so. Section 37(3) extended that power to restraining a party to any proceedings
from ˜dealing with™ assets within the jurisdiction. ˜Dealing with™ includes dis-
posing of, selling, pledging or charging an asset. The order in e¬ect freezes the
assets pending the outcome of the proceedings. It has been held that such an
order can apply to assets worldwide: Derby & Co Ltd v. Weldon (No 2),182 but
that such worldwide orders should be granted only in exceptional circum-
stances: Republic of Haiti v. Duvalier.183
In 2006 the House of Lords held that a bank which authorised payments from
a customer™s account in breach of a validly served freezing order did not owe a
duty of care to a claimant who was unable to enforce its judgment because of
that breach. The bank™s failure could be punished by the court as a contempt
but that only arose if it knowingly took steps to frustrate the order.184
Usually the order only relates to the amount of the claim “ leaving the defen-
dant free to use the rest of his assets. The defendant must be left enough to meet
his reasonable living expenses and to meet certain debts (PCW (Underwriting
Agencies) Ltd v. Dixon).185 The defendant must also normally be allowed to
make payments in the ordinary course of business conducted in good faith
(Iraqi Ministry of Defence v. Arcepey Shipping Co SA).186
Mareva injunctions became very popular. (In a case in 1986, Justice Bingham
said that such applications had become ˜commonplace, hundreds being made
each year and relatively few refused™.187)
The procedure is dealt with in the Practice Direction for CPR Part 25.
A ˜search order™ (formerly called an Anton Piller order) The other draconian
order originally developed by the courts in the 1970s was the Anton Piller


180
[1980] 1 All ER 213n, [1975] 2 Lloyd™s Rep 509, CA.
181
See especially Third Chandris Shipping Corpn v. Unimarine SA [1979] QB 645 at 668“69; The
Siskina [1979] AC 210 at 261; Barclay-Johnson v. Yuill [1980] 1 WLR 1259.
182 183
[1989] 1 All ER 1002, CA. [1990] 1 QB 202, CA.
184
Customs and Excise Comrs v. Barclays Bank Plc [2006] UKHL 28. See A. Craig, ˜Meltdown for
Freezing Orders?™, 156 New Law Journal, 29 September 2006, p. 1470.
185 186
[1983] 2 All ER 697. [1981] QB 65n.
187
Siporex Trade SA v. Comdel Commodities Ltd [1986] 2 Lloyd™s Rep 428 at 539.
103 Getting evidence from witnesses


order,188 which permits the plainti¬ to enter the defendant™s premises to search
for evidence. (The court™s jurisdiction to make the order was put on a statutory
basis by the Civil Procedure Act 1997, s. 7.)
The application is made without notice (previously ex parte) to the defendant
and is generally heard in camera so as not to alert the other side to the applica-
tion and thus risk that the material may be destroyed.
Search orders are governed by CPR 25.1(1)(h) and the Practice Direction
accompanying Part 25. The plainti¬ must satisfy the court that he has a very
strong prima facie case on the merits, that he is likely to su¬er very serious actual
or potential damage from the defendant™s actions, and that there is clear evi-
dence that the defendant has incriminating material on his premises which he
would be likely to destroy if no order were made. If the court is satis¬ed that the
e¬ect of such an order would not be excessive or out of proportion, it may order
the defendant to permit the plainti¬ to enter his premises, to search for goods
or documents which are relevant to his claim and to remove, inspect, photo-
graph or make copies of such material.
The plainti¬ has to give an undertaking that he will pay the defendant damages
if a judge should later hold that damages ought to be paid because of the way the
order was executed. The order must be precise. It should be enforced with cir-
cumspection and the claimant™s solicitor being an o¬cer of the court should be
present. The defendant must be allowed to contact his solicitor and, unlike the
police with a search warrant, if the defendant refuses entry, the claimant is not
entitled to use force, but the defendant may ¬nd himself liable to proceedings,
including committal to prison, for contempt of court.189 The procedural require-
ments set out in Universal Thermosensors are now included in the Practice
Direction to CPR, Part 25 of which deals at length with search orders. In partic-
ular, it requires that there always be a solicitor to supervise the actual entry.190

188
The name derived from the decision which initiated this development “ Anton Piller KG v.
Manufacturing Processes Ltd [1976] 1 All ER 779, CA. The plainti¬s wanted to restrain a
breach of copyright by a rival ¬rm. They feared that if the defendants knew, they would
destroy the documents showing their guilt. They therefore applied for an ex parte order, which
was granted. The Court of Appeal held that such an order should, however, only be made in
an extreme case where there was grave danger of property being smuggled away or vital
evidence destroyed.
189
For pre-CPR cases, see especially Rank Film Distributors Ltd v. Video Information Centre
[1982] AC 380; Vapormatic Co Ltd v. Sparex Ltd [1976] 1 WLR 939; Yousif v. Salama [1980] 1
WLR 1540. In Columbia Picture Industries Inc v. Robinson [1986] 3 All ER 338 it was held that
the order had been carried out in an oppressive manner by the plaintiªs solicitors. The court
ordered them to pay the defendant damages of £7,500 plus £2,500 for his company. For
discussion and comment, see Civil Justice Quarterly, January 1987, p. 10. See generally A.
Staines, ˜The Protection of Intellectual Property Rights: Anton Piller Orders™, 46 Modern Law
Review, 1983, p. 274 and M. Dockray and H. Laddie, ˜Piller Problems™ 106 Law Quarterly
Review, 1990, p. 601. See also the strong decision of the Vice Chancellor in Universal
Thermosensors Ltd v. Hibben [1992] 3 All ER 257.
190
For a detailed appreciation of the importance of this institution by someone who had
performed the role twenty to thirty times, see T. Willoughby, ˜The Role of the Supervising
Solicitor™, 18 Civil Justice Quarterly, April 1999, pp. 103“12.
104 Pre-trial civil proceedings


A variety of other safeguards are covered in the Practice Direction: (1) exe-
cution should be on working days during o¬ce hours so that the defendant can
get legal advice if he wishes to have it; (2) where the supervising solicitor is a
man and the respondent is likely to be an unaccompanied woman, he must be
accompanied by a woman and (3) unless it is impracticable, a detailed list of
what is taken away must be prepared on the premises and the defendant must
be given an opportunity to check the list before anything is removed.
The Supreme Court Act 1981, s. 72 cancelled the privilege against self-
incrimination in the context of proceedings for infringement of intellectual
property (patents, trade marks, copyright etc.) but provided that answers given
or documents handed over cannot be used in subsequent criminal proceed-
ings. A search order in such cases is therefore not covered by the privilege. A
consultation paper issued by the LCD in 1992 (The Privilege against Self-
incrimination in Civil Proceedings) recommended that the privilege should no
longer apply in civil proceedings generally but this recommendation was not
acted upon.
The ˜search™ (Anton Piller) order and the ˜freezing order™ (Mareva injunction)
were developed primarily in intellectual property, passing o¬ and other com-
mercial matters. Anton Piller orders were often sought by employers against ex-
employees to prevent them using con¬dential information such as customers™
lists, price lists etc. They can be used equally in matrimonial proceedings. Thus
in Emanuel v. Emanuel191an Anton Piller order was granted to enable a wife to
search at her former husband™s home for documents which he had unreason-
ably refused to produce with regard to his income.
Stopping the defendant leaving the country In Bayer AG v. Winter192 the Court
of Appeal held that in support of a Mareva injunction and Anton Piller order
the court could also give further relief in the form of a requirement that the
defendant hand in his passport and an order that he not leave the country.


Obtaining advance notice of one™s opponent™s witnesses and of their
evidence

<<

. 6
( 34)



>>