FAI General Insurance Company Ltd v Godfrey Merrett Robertson Ltd
| Jurisdiction | England & Wales |
| Judge | Butler-Sloss,Potter L JJ,Sir Patrick Russell |
| Judgment Date | 21 December 1998 |
| Date | 21 December 1998 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal (Civil Division).
Butler-Sloss and Potter L JJ and Sir Patrick Russell.
Brian Leveson QC and Tina Cooke (instructed by Clyde & Co, Guildford) for the appellant.
Colin Edelman QC and David Joseph (instructed by Reynolds Porter Chamberlain) for the respondent.
Helen Davies (instructed by Barlow Lyde & Gilbert) for Ocean Marine Mutual Insurance Brokers OV.
The following cases were referred to in the judgment of Potter LJ:
A-G v Leveller Magazine LtdELR [1979] AC 440.
Derby & Co Ltd v Weldon (The Times, 20 October 1988).
Dobson v HastingsELR [1992] Ch 394.
Hodgson v Imperial Tobacco LtdWLR [1998] 1 WLR 1056.
Home Office v HarmanELR [1983] 1 AC 280.
Plant v PlantUNK [1998] 1 BCLC 38.
Practice Direction (Civil Litigation: Case Management) [1995] 1 WLR 262.
Practice Direction (Witness Statements: Inspection) [1992] 1 WLR 1157.
R v Governor of Lewes Prison, exparte DoyleELR [1917] 2 KB 254.
Scott v ScottELR [1913] AC 417.
Procedure — Inspection of documents in proceedings — Insurance — Reinsurance — Insurers sought leave to inspect documents in proceedings involving same brokers — Whether non-parties entitled to inspect documents referred to in witness statements, skeleton arguments and documents referred to therein and documents read by judge — Supreme Court Act 1981, s. 67 — Rules of the Supreme Court, O. 38, r. 2A, O. 63, r. 4.
This was an appeal by reinsurers, “FAI”, from a judge's refusal to permit FAI to inspect or take copies of various documents referred to in open court and taken as read in the course of a trial to which FAI was not a party.
FAI was the defendant in proceedings brought by OMM against FAI as reinsurer seeking recovery of sums due under contracts of reinsurance which FAI purported to avoid for misrepresentation and/or non-disclosure. The contracts of reinsurance were made via a chain of brokers and the same chain of placing brokers were involved in placing a number of reinsurance contracts which were the subject matter of proceedings between “GIO”, as reinsurer, and “London & Liverpool”, as reinsured, before Timothy Walker J. Part of the proceedings were settled but there was a trial at which the judge read a lengthy opening statement on behalf of the effective plaintiff and spent several more days reading. A further part of that action settled but the trial was concluded by a judgment. The judge allowed FAI to inspect the witness statements ordered to stand as evidence in chief under RSC, O. 38, r. 2A(12). FAI further applied to inspect and take copies of the skeleton arguments and all documents referred to therein, and the trial bundles or such parts as had been read by the judge or referred to during trial or in the skeleton arguments on the basis that FAI was entitled to access to that material as a member of the public. The judge refused the application on the basis that although he had jurisdiction to make the order sought he would not do so because FAI's motive in seeking it was not as a member of the public but to use in the litigation in which FAI was involved. FAI appealed seeking access to the documents referred to in the witness statements provided under O. 38, r. 2A, the skeleton arguments and documents referred to therein, and any other document which the judge was requested to read or which was read or referred to during trial.
Held allowing the appeal in part:
1. There was no right of access under O. 38, r. 2A to documents referred to in witness statements. That rule covered witness statements only and did not extend to documents referred to in those statements. Nothing in the history or context of the rule disclosed an intention to allow a third party access to documents which had previously been unobtainable (without the parties' consent) even to members of the public who attended court. There was no warrant for reading r. 2A as entitling a member of the public to inspect the documents referred to by the witness as opposed to the witness statement itself.
2. The court file was not a publicly available register. A member of the public required leave under O. 63, r. 4(1)(c) to obtain access to affidavits and other documents filed in the action. Such leave was likely to be given if the affidavit or other document had been read in open court. So far as concerned documents which formed part of the evidence or court bundles, there was no right and no provision enabling a member of the public present in court to see, examine or copy a document simply on the basis that it had been referred to in court or read by the judge.
3. Where a judge was instructed in the issues in a case by a written opening or skeleton argument read privately by him an important part of the judicial process would not take place in open court and under the inherent jurisdiction of the court to govern its own procedure and having regard to the principle of “open justice” recognised in s. 67 of the Supreme Court Act 1981 the court could and would on application by a member of the press or public require a copy of the written opening or skeleton argument submitted to the judge to be made available to the applicant.
4. The judge was wrong to have regarded the motive of FAI as improper. Most persons who would apply to see written openings or skeleton arguments and who were prima facie entitled to do so would have some special interest. The judge erred in the exercise of his discretion. FAI was entitled to inspect and copy the written openings or skeleton arguments referred to by the judge at trial, but was not entitled to documents referred to in the written openings or skeleton arguments.
5. FAI was not entitled to access to the documents which the judge was requested to read whether mentioned in the written submissions or otherwise.
6. OMM was effectively a party to the appeal and the order for inspection in relation to the written submissions and skeleton arguments should extend to OMM as well as FAI.
Potter LJ:
This is an appeal by FAI General Insurance Co Ltd (“FAI”) from a decision of Timothy Walker J refusing applications made on behalf of FAI to inspect and/or take copies of various documents referred to in open court and taken as read in the course of a trial to which FAI were not a party. The interest of FAI to inspect and obtain such documents arises as follows. FAI are currently defendants in proceedings brought by Ocean Marine Mutual Protection & Indemnity Association and Ocean Marine Mutual Insurance Association Europe OV (“OMM”) in which OMM seek recovery of sums due under contracts of reinsurance made between OMM and FAI in 1993, 1994 and 1995. FAI have purported to avoid the contracts of reinsurance for misrepresentation/non-disclosure and defend upon those grounds. The contracts of reinsurance were made via a chain of brokers in London and Australia. The same chain of placing brokers were involved in placing a number of reinsurance contracts which were the subject matter of the trial before Timothy Walker J in the present action.
The present action centred on the avoidance of reinsurance contracts by the plaintiffs (“GIO”), an Australian reinsurer, the reinsured being Liverpool & London Steamship Protection and Indemnity Association (“Liverpool & London”). The placements of those contracts were broadly contemporaneous with those in the OMM action. As already indicated, the chain of brokers was the same, two particular individuals, namely Trevor Karsten for the fifth third party (“GAK Re”) and Jonathan Chapman of the first fourth party (“Chapman & Co”) being heavily involved in both placements. Prior to trial there was a settlement between GIO and Liverpool & London, the latter effectively accepting the avoidance of the reinsurers' contracts due to misrepresentation/non-disclosure. Liverpool & London in turn settled their third party proceedings against the first third party (“GMR”) and the second and third third parties. At the trial of the present action the effective plaintiff was GMR (the head broker based in London) pursuing claims for indemnity and/or damages against the sub-brokers Chapman & Co and Mr Chapman and GAK Re. The second and third third parties had and have identity of interest with GMR and henceforth in this judgment will not be separately referred to.
On 2 June 1998, short opening speeches were made by Mr Edelman QC for GMR, and Mr Tomlinson QC for GAK. Mr Edelman made clear that he had a written opening (of some 67 pages) which he placed before the judge saying that he did not wish to develop it that day but preferred the judge to read it in conjunction with a lengthy opening statement for GAK, following which he (Mr Edelman) would deal with any of the judge's queries. He then elaborated on the issues as they emerged from the opening and Mr Tomlinson, for GAK, did the same. The judge indicated he would spend 3 June 1998 onwards as reading days, later indicating that his reading would be completed by 8 June, when the parties re-attended court. By 8 June, GMR and GAK had settled and GMR proceeded against Chapman & Co and Mr Chapman who did not appear.
On 2 June, prior to the openings, FAI's solicitors had written to GMR's solicitors requesting that they make available copies of (a) the skeleton arguments lodged by counsel, (b) the trial bundles, (c) daily transcripts as they became available, all against FAI's undertaking to pay reasonable charges. They wrote:
“You will be aware that RSC Order 24, Rule 14A confirms that the usual implied undertaking on discovery ceases to apply once a document is referred to at Trial. The notes to the Rule indicate that this applies similarly to documents referred to in the Skeleton Arguments lodged with the court. And it seems to us in principle that the same thing must apply to Bundles which have been lodged before the Judge for reading during the Trial, even if in the interests of convenience and...
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