British Coal Corporation v Dennis Rye Ltd (No. 2)

JurisdictionEngland & Wales
Judgment Date25 February 1988
Judgment citation (vLex)[1988] EWCA Civ J0225-4
Docket Number88/0161
CourtCourt of Appeal (Civil Division)
Date25 February 1988
British Coal Corporation (Formerly National Coal Board)
Plaintiff (Respondent)
Dennis Rye Limited
First Defendant (Appellant)
Dennis Rye
Second Defendant (Appellant)

[1988] EWCA Civ J0225-4


Lord Justice Dillon

Lord Justice Neill


Lord Justice Stocker


1986 N No.2593






(HIS HONOUR JUDGE FOX-ANDREWS Q.C., Sitting as Official Referee in Chambers)

Royal Courts of Justice

MR. MICHAEL DRISCOLL (instructed by Messrs. Beachcrofts, Solicitors, London, EC4A 1BN) agents for Messrs. King and Brook, Solicitors, Chesterfield, Derbyshire S40 1JS) appeared on behalf of the Defendants (Appellants).

MR. JOHN DYSON Q.C. and MR. DAVID LLOYD-JONES (instructed by Mr. J.G. Tyrrell, Solicitor, Eastwood, Nottinghamshire, NG16 3EB) appeared on behalf of the Plaintiff (Respondent).



I have asked Lord Justice Neill to deliver the first judgment on this appeal.


The defendants appeal by leave of the judge against two orders of His Honour Judge Fox-Andrews Q.C., sitting as an Official Referee, dated 3rd August 1987. By these orders, which were made on the plaintiffs' summonses dated 16th and 17th July 1987, the defendants were required to deliver to the plaintiffs the documents listed in the amended schedules to the two summonses, and also

"all documents in the possession or control of the defendants their servants or agents which are protected by the legal professional privilege of the Plaintiff, all written notes taken from the said documents or copies thereof, and all copies of the said documents or notes in their custody possession or control or that of their solicitors their servants or agents."


In addition the judge granted an injunction—I quote from I the notice of appeal—

"restraining the Defendants whether by themselves, their servants or agents or otherwise howsoever from making any use of the said documents notes or copies or any information derived therefrom for the purpose of pleading, evidence, cross-examination or otherwise for the purpose of or in connection with these or any other legal proceedings between the Plaintiff and the Defendants or either of them…."


These orders were made in an action which was commenced by a writ issued on 28th November 1986, whereby the plaintiffs (formerly The National Coal Board) claim the sum of approximately £2M. from the first defendant as money had and received, being the total sum alleged to have been overpaid by the plaintiffs on invoices issued by the first defendants between January 1980 and September 1985. The plaintiffs also claim damages against the defendants for fraudulent, or alternatively negligent, misrepresentations made by the defendants, and damages for an alleged conspiracy to defraud. Put shortly, the plaintiffs' claim is that they were grossly overcharged by the defendants for work carried out by the first defendants and that the invoices which were sent to them, and which they paid, misrepresented the work which had in fact been done by the first defendants.


The action is due to be heard in two parts, the first part being fixed for trial beginning on 24th October 1988.


The defendant company, which was incorporated in 1976, carries on business as a building contractor from premises in Tibshelf in Derbyshire. The second defendant, Mr. Rye, is and has been at all material times the chairman and managing director of the defendant company. He is also the majority shareholder. Mrs. Rye is the only other director and shareholder.


Between June 1979 and October 1985 the defendant company was engaged by the plaintiffs under a series of contracts to carry out certain works in the North Nottinghamshire area. The works fell into two categories:

  • (a) works of repair to fissures in the ground which had opened up as a result of subsidence caused by mining; and

  • (b) works of repair to buildings which had been damaged as a result of subsidence caused by mining.


The works were carried out in accordance with orders issued by the plaintiffs from time to time, and from time to time payments were made against invoices. The last order for work was issued on 13th June 1985; the last payment was made by the plaintiffs on 4th July 1985.


In or about 1985 the plaintiffs formed the opinion that they had been overcharged in a number of different ways for the work which had been carried out between 1980 and 1985. They instructed a firm of Quantity Surveyors, Messrs. Faithful and Gould, to carry out some investigations. In due course the police were informed and subsequently a number of documents were handed by the plaintiffs to the police. These are the documents which are, as I understand it, listed in the amended schedule to the summons dated 16th July 1987 and which are set out on page 45 of the core bundle. They consist of statements from a number of named individuals, and also five reports from Messrs. Faithful and Gould. It is common ground that these documents came into existence for the purpose of civil proceedings against the defendants which were then already contemplated, and that at that stage, at any rate, they were protected by legal professional privilege of the kind considered by the House of Lords in waugh v. British Railways Board (1980) Appeal Cases 521, and more recently in this court in Guinness Peat Properties v. Fitzroy Robinson Partnership, (1987) 1 Weekly Law Reports 1027.


As a result of the police investigations criminal charges were brought against the defendant company and against Mr. Rye, and also against some of the plaintiffs' employees and other persons with whom the defendant company and Mr. Rye had had dealings, in connection with the works which the defendant company had carried out for the plaintiffs. The precise date when criminal proceedings were started against Mr. Rye is not clear; the proceedings against the defendant company were commenced by a voluntary bill of indictment preferred on 22nd December 1986.


The trial of the defendants began at Nottingham Crown Court on 5th May 1987. Before the trial began a bundle of committal documents had been prepared. None of the Category A documents, as the documents which had been handed to the police by the plaintiffs were described, was included in this bundle. However, copies of the Category A documents had been supplied to the defendants pursuant to the Guidelines on the Disclosure of Information to the Defence, issued in December 1981. Those Guidelines, which were issued by the Attorney-General, are set out in a Practice Note which is to be found in (1982)1 All England Reports at page 734. Paragraph 2 of those Guidelines provides that in all cases which are due to be committed for trial all unused material as defined in paragraph 1 should normally be made available to the defence solicitor if it has some bearing on the offence or offences charged.


But there are a number of discretionary exceptions mentioned in paragraph 6, to which we were referred in the course of argument. I do not consider it necessary, however, for the purposes of this judgment to make a further detailed reference to that Practice Note.


The criminal trial against the defendants concluded on 11th June 1987, when both defendants were acquitted. During the course of the trial and during the course of the case for the Crown, a Mr. Tomlinson, an employee of the plaintiffs in their audit department, gave evidence on behalf of the Crown. I should refer to the evidence of what happened when Mr. Tomlinson was in the witness box on 7th May 1987 and to the subsequent events.


This evidence is contained in an affidavit sworn on behalf of the plaintiffs on 21st July 1987 by Mr. James Tyrell, the regional solicitor for the plaintiffs, and in an affidavit sworn on 31st July 1987 by Mr. George Brown, another solicitor employed by the plaintiffs.


I turn first to paragraph 23 of Mr. Tyrell's affidavit. He said this:

"Mr. David Bernard Tomlinson, an employee of the Plaintiff in its Audit Department, was called to give evidence on behalf of the prosecution at the trial of the Defendants at Nottingham Crown Court on 7 May 1987. At the request of the Nottinghamshire Constabulary he took with him to Court a number of boxes of papers relating to these present proceedings. In the course of his evidence Mr. Tomlinson referred to the existence of these documents. He did not refer to these documents for the purpose of giving his evidence. When Mr. Tomlinson referred to their existence, Mr. Gilbert Gray Q.C., on behalf of the...

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