Dunlop Slazenger International Ltd v J0E BLOGGS SPORTS Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LORD JUSTICE WALLER: |
| Judgment Date | 11 June 2003 |
| Neutral Citation | [2003] EWCA Civ 901 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A2/03/1277 |
| Date | 11 June 2003 |
[2003] EWCA Civ 901
Lord Justice Thorpe
Lord Justice Waller
A2/03/1277
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
(MR JUSTICE BUCKLEY)
QUEEN'S BENCH DIVISION
MR I CROXFORD QC AND MR D HEAD (instructed by Messrs Addleshaw Goddard, London, EC4) appeared on behalf of the Applicant.
MR D CAVENDER (instructed by Messrs Ashurst Morris Crisp, London, EC2) appeared on behalf of the Respondent.
This is an application for permission to appeal an order of Buckley J made on 5th June 2003. I would say straightaway that it has been treated as the appeal, an order having been made by Clarke LJ that this matter should be adjourned to the Court of Appeal, with appeal to follow if permission granted. The reason for the urgency is that a trial is due to commence tomorrow. Two interlocutory applications have been made recently, one in May for leave to adduce certain witness statements. This led to the application by the claimant in this case before Buckley J on 5th June. His order has led to this appeal, and this appeal has been brought on as a matter of urgency.
There would be many circumstances in which it would be right to reserve judgment, but urgency requires the matter to be dealt with, and it is right that we do deal with the matter and try to give our reasons as best we can.
Buckley LJ directed that the defendant in these proceedings ("JBSL) should disclose certain documents, being documents passing between itself and its solicitors or an expert, all being documents that were material to the information being supplied by the expert in February of this year. Objection was taken to having to produce those documents for inspection by JBSL on the basis that those documents are by their nature privileged. The retort to that claim is that privilege in the documents has been waived.
The action concerns the question whether an option was exercised. Relevant to the determination of that issue may be the answer to the question whether a letter dated 17th June 2002 was sent by JBSL to Dunlop. Dunlop have asserted that they never received such a letter, and indeed have contended that the letter was never in fact sent. JBSL, at least when the matter was before the judge, were making part of their case that they could prove that the letter was sent by evidence that the letter was produced on a computer of theirs on the date 17th June 2002. Dunlop have never accepted that, and there was, at least at the time that this matter was before the judge, an issue as to whether that letter was produced on a JBSL computer on 17th June. A hard copy of a letter dated 17th June has been produced by JBSL, but Dunlop say, and indeed plead, that that was only produced on a JBSL computer after 17th June. Indeed, they say that efforts have been made by JBSL to interfere with the computer in order to produce the effect of the letter being sent on 17th June by altering the computer's clock and then running a software package which was intended to eliminate discovery of that interference. Up until May this year, or perhaps a little earlier, both parties were concentrating on one computer, computer No 1. Experts on each side have examined the hard drive of computer No 1. After that inspection Dunlop's expert has produced an expert report, not disclosed, it is fair to say, until 5th May 2003. That report supported the assertion of the letter having been produced on computer No 1 but with an interference with the computer clock and a running of the eliminating software programme.
JBSL have not produced an expert's report. Their expert looked at the hard drive of computer No 1. It seems he concluded that there were signs of the clock having been turned back and the software having been used to eliminate the signs that that was so.
At some stage the position so far as JBSL were concerned changed dramatically. The change, so far as they were concerned, involved an alteration in the way they were putting their evidence so far as the trial was concerned. They wish to put in a supplemental statement of a Mr Tariq who wished to give evidence that it was not in fact computer No 1 on which this letter had been produced but a different computer, computer No 2. They also wished to put in evidence to provide an explanation of how it was that it might be true that in relation to computer No 1 it might appear that the letter had been produced after 17th June and that software had been run in order to disguise that fact. The explanation of Mr Tariq and Mr Ali combined involved Mr Tariq saying that the letter having been produced on computer No 2 was transferred by a diskette to computer No 1 after the relevant date "to check that the letter was on the diskette". It involved an explanation by Mr Ali as to how he feared, during an exercise that he was conducting in relation to computer No 1, that he might have corrupted the letter on computer No 1 by an accident with the computer caused by him. It involved an explanation as to how he feared that he would be blamed for losing the letter of 17th June, and how he had thus recreated that letter and disguised what he had done by changing the clock on the computer and how he had run software to cover up what he was doing.
Clearly the permission of the court was needed if that evidence from Mr Ali was to put in and if a supplemental statement from Mr Tariq was to be put in. So it was that an application was made to Gibbs J to allow further evidence to be put before the court. That application was supported by an affidavit by a lady called Miss Ahmed, in which she sought to explain how it was that JBSL had got themselves into the position that they had and how it was that they had come to approach Mr Ali rather late in the day. It also sought leave to put in statements providing the same explanation at the trial. That is not unimportant. We have been referred to a solicitor's letter prior to the making of that application, and to the application itself and to the order made by Gibbs J. What they demonstrate is that it was the intention of JBSL, in making the application that they did, not only to put the explanation of why they were where they were for the purpose of persuading Gibbs J to make an order allowing in the new evidence, but hardly surprisingly, to seek leave to put in the same evidence at the trial explaining how they were where they were in order to support the evidence of Mr Ali and Mr Tariq. At the forefront of the explanation that they were seeking to give to Gibbs J, and at the forefront of the explanation they were at that stage saying they wished to give to the court at the trial, were certain paragraphs of Miss Ahmed's first statement. Paragraphs 13 and 14 read as follows:
"On 18 February 2003 JBSL's forensic IT expert reported that it had carried out further investigations on the hard drive from Mr Tariq's computer, and that the 17 June 2002 letter may have been created on a different computer.
JBSL also discovered that there were two versions of the 17 June letter: the difference between the two being the tenth word in line 1, and that Mr Tariq's computer contained, or had contained, two electronic files with similar names: DSIL 17–06–02 and SSIL 17–0602. In addition, JBSL's forensic IT expert advised that the internal clock of Mr Tariq's may have been turned back."
The actual statement of Miss Ahmed that JBSL were wishing to put before the trial judge is her second statement. That contained in paragraph 3 a reference back to her first statement. Paragraph 3 reads as follows:
"On 18 February 2003, the defendant was informed by its forensic IT expert that the 17 June 2002 letter may have been created on a different computer from Mr Tariq's computer, which had been the subject of a forensic inspection by both the claimant and the defendant in October 2002. At paragraphs 13–15 of my first witness statement I have set out the detail of the revelations that were made during this meeting, in particular, the fact that two versions of the 17 June letter existed and that the internal clock of Mr Tariq's computer may have been...
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