Dolling-Baker v Merrett and Another

JurisdictionEngland & Wales
JudgeLORD JUSTICE FOX,LORD JUSTICE PARKER,LORD JUSTICE RALPH GIBSON
Judgment Date21 March 1990
Judgment citation (vLex)[1990] EWCA Civ J0321-1
Docket Number90/0275
CourtCourt of Appeal (Civil Division)
Date21 March 1990
Dolling-Baker
(Plaintiffs/Respondents)
and
Merrett & Anor
(Defendants/Appellants 1st Defendants)

[1990] EWCA Civ J0321-1

Before:

Lord Justice Fox

Lord Justice Parker

Lord Justice Ralph Gibson

90/0275

1988 Folio No. 3514

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMIRALTY AND COMMERCIAL REGISTRY

COMMERCIAL COURT

(MR JUSTICE PHILLIPS)

Royal Courts of Justice,

MR ANTHONY TEMPLE Q.C. and MR J. ROWLAND (instructed by Messrs. Davies Arnold Cooper) appeared on behalf of the Appellants.

MR TIMOTHY WALKER Q.C. and MR J. GAISMAN (instructed by Messrs. Cameron Markby Hewitt) appeared on behalf of the Respondents/ Plaintiffs.

MR.RICHARD AIKENS Q.C. and MR S. RUTTLE (instructed by Messrs. Ince & Co.] appeared on behalf of the Respondents/2nd Defendants.

LORD JUSTICE FOX
1

Lord Justice Parker will give the first judgment.

LORD JUSTICE PARKER
2

There are two appeals before the Court for determination. The principal appeal is an appeal by the first defendant from an order for specific discovery under 0. 24 r. 7 made by Phillips J. on 28th February of this year. The second appeal is also an appeal by the first defendant, in this case from the refusal of the same learned Judge on 9th March of an application for an injunction restraining the second defendant from, in effect, disclosing the documents ordered to be disclosed by the first defendant in the first application. It is common ground that all of the documents concerned are in the possession, physically, of the first defendant and of the second defendant—but not of the plaintiff.

3

The trial of the action in which the appeals arise is fixed to begin on 24th April. The plaintiff in the action is a representative underwriter, suing on behalf of himself and all Members of Lloyd's Syndicate No. 544. The first defendant is also a representative underwriter, and is sued on behalf of himself and all other Members of Syndicates Nos. 417 and 421.

4

The second defendants are insurance brokers, and were the placing brokers in respect of an aggregate excess of loss re-insurance dated 24th May 1982 between the plaintiff Syndicate as the re-insured, and the first defendant Syndicates as re-insurers

5

The action in which the appeals arise is brought by the plaintiff against the first defendant to recover monies due under that re-insurance. The first defendant's Defence is that he was entitled to avoid the re-insurance for nondisclosure. If that Defence succeeds, the plaintiff claims alternatively against the second defendant. The first defendant, and/or a Mr Emney on his behalf, wrote further re-insurances of a similar kind; one of them involved Syndicate No. 418 as re-insurer, and Syndicates Nos. 333, 334 and 335, and 426 and 427 as re-insured. (I refer to them as the Verrall syndicates). That re-insurance was dated 18th September 1981.

6

The first defendant, on behalf of Syndicate No. 418, sought to avoid that re-insurance, also for non-disclosure. This resulted in a representative arbitration between the first defendant for Syndicate No. 418, and a Mr Turner for the Verrall Syndicate. The second defendant was also placing broker in that case.

7

The first defendant succeeded, and by an award dated 2nd February last, the Arbitrator declared that re-insurance to be invalid. Mr Turner seeks to appeal against that award, and has issued a summons for leave to appeal and lodged Notice of Motion dated 23rd February, pursuant to 0.73. The Notice of Motion is, but the summons and any affidavit on the question of whether this was a one-off transaction, is not before the Court.

8

Both of the appeals before us concern the documents in the Turner arbitration, which include (amongst other things) nine days of transcript of evidence, and the award itself.

9

On 9th January the plaintiff issued a summons in this action seeking specific discovery under 0. 24 r. 7 of a number of classes of documents, and under 0. 24 r. 11(2)—inspection of such documents. One of the classes of documents sought by the summons was as follows:

10

"All pleadings, documents, witness statements, experts reports and any other relevant documents produced and/or disclosed in the arbitrations between Merrett and Verrall and between the Wrights on Syndicate and Outhwaite".

11

It should be noted that the description "Merrett" at the outset of the Schedule which was annexed to the summons is in the following terms:

12

"'Merrett' refers to the first defendant himself, J.C. Emney, Syndicates 417 and 421, any present or former Syndicate within the Merrett Group or managed by any company within the Merrett Group, and all companies within the Merrett Group".

13

The application therefore was of a somewhat unusual width, to say the least.

14

There is a similarity between the re-insurance, the subject of the Turner arbitration, and the re-insurance, the subject of the present action. I need say no more than this, that the risks include risks concerning latent diseases the principal one of which was asbestosis. It had transpired that the long-term effects of the disease were causing concern in the market. I will revert to that here-after In addition to the two re-insurances which I have already mentioned, further re-insurances were written. The placing brokers in the other eases were not the second defendants, and it is unnecessary to refer further to those other re-insurances.

15

Before going further it is now necessary to refer to the Rules in 0.24. pursuant to two of which the summons for discovery was launched. Rule 1 provides the general obligation to give mutual discovery of documents. Rule 2 provides for automatic discovery in certain cases. Rule 3 is the first of the rules which provides for an order being made. It is in the following terms:

16

"(l) Subject to the provisions of this rule and of rules 4 and 8, the Court may order any party to a cause or matter (whether begun by writ, originating summons or otherwise) to make and serve on any other party a list of the documents which are or have been in his possession, custody or power relating to any matter in question in the cause or matter, and may at the same time or subsequently also order him to make and file an affidavit verifying such a list and to serve a copy thereof on the other party".

17

It is to be noted that that is subject to rule 8. There is then provision for the determination of issues before discovery, and the form of the list of documents. One, then comes to rule 7 under which the first part of the summons was launched. That starts:

18

"(1) Subject to rule 8" and it continues: "the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is, or has at any time been, in his possession, custody or power………"

19

Sub-rule (2) provides:

20

"An order may be made against a party under this rule notwithstanding that he may already have made or been required to make a list of documents or affidavits under rule 2 or rule 3.

21

Sub-rule (3) provides:

22

"An application for an order under this rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this rule has, or at some time had, in his possession, custody or power the document, or class of document, specified or described in the application and that it relates to one or more of the matters in question in the cause or matter".

23

Rule 8, to which both rules 3 and 7 are subject, provides:

24

"On the hearing of an application for an order under rule 3, 7 or 7A" (which is not immediately relevant) "the Court, if satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, may dismiss or, as the ease may be, adjourn the application and shall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs".

25

It is to be noted that rule 8 imposes a bar only if the Court is of the opinion that the discovery is not necessary either for disposing fairly of the cause or matter or for saving of costs.

26

So far the rules are dealing with discovery in the sense of listing by affidavit, or by lists unverified or verified by affidavit. They are not dealing with production or inspection. The rules which deals with production and inspection begin at rule 9. I need net read that rule, nor indeed rule 10. I come straight to rule 11, under which the second part of the summons was launched. Rule 11 (1) (which was not the rule relied upon in the summons) relates to cases where there has already been a list of documents under the previous rules. Sub-rule (2) provides as follows:

27

"Without prejudice to paragraph (1) but subject to rule 13(1) the Court may, on the application of any party to a cause or matter, order any other party to permit the party applying to inspect any documents in the possession, custody or power of that other party relating to any matter in question in the cause or matter.

28

"(3) An application for an order under paragraph (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that they are in the possession, custody or power of the other party and that they relate to a matter in question in the cause or matter".

29

Rule 12 provides:

30

"At any stage of the proceedings in any cause or matter the Court may, subject to rule 13(1) order any...

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