Derby & Company Ltd v Weldon (No. 9)
| Jurisdiction | England & Wales |
| Judgment Date | 06 November 1990 |
| Date | 06 November 1990 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Before Lord Justice Dillon, Lord Justice Ralph Gibson and Lord Justice Staughton
Practice - expert evidence - disclosure
The court had no power to order a party to litigation to disclose expert evidence on an issue on which that party did not intend to adduce evidence at the trial.
The Court of Appeal so held in dismissing an appeal by the plaintiffs, Derby & Co Ltd, Cocoa Merchants Ltd, Phibro-Salomon Finance AG, Phibro-Salomon Ltd, Philipp Brothers Inc, Philipp Brothers Ltd and Salomon Inc, from Mr Justice Mummery who, in the course of an action between the plaintiffs and the defendants, Anthony Henry David Weldon, Ian Jay, Milco Corporation Panama, CML Holding SA Luxembourg, Wollstein Stiftung, Tim Schneider, Ernst Aeschbacher, Peter Ritter, Steelburg Management Inc, Pilgrim Enterprises Inc, Louis Rohner and Peripheria SA, had by order dated October 30, 1990, inter alia, declined to order the defendants to serve on the plaintiffs' solicitors a report of expert evidence on an issue in the action.
Mr Charles Purle, QC for the plaintiffs; Mr David Hunt, QC and Miss Lindsey Stewart for the third to twelfth defendants; Mr Michael Green for the first and second defendants.
LORD JUSTICE DILLON said that among numerous interlocutory orders already made in the action was one on February 28, 1990 by Mr Justice Vinelott, whereby the parties were given leave to call five experts at the trial, one of whom was to be an accountant.
The order provided for mutual disclosure of experts' reports and reports in reply, and for the parties to be at liberty to call at the trial experts the substance of whose evidence had been disclosed in such reports.
One issue in the action, referred to as the "initial conspiracy", concerned an allegation that, broadly, some of the defendants had fraudulently conspired to mis-state the financial position of one of the defendants, a company which certain of the plaintiffs were to purchase.
As a result of amendments to the defendants' defences made in June 1990, the plaintiffs in July obtained leave to amend the statement of claim to allege an "alternative initial conspiracy".
The accountants retained by the parties prepared reports and reply reports which were mutually disclosed. Mr Munson, the defendants' accountant, said in his reply report that he had not seen the alternative initial conspiracy claim which he understood the plaintiffs...
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