Favor Easy Management Ltd and Anr v WU and Anr
| Jurisdiction | England & Wales |
| Judge | Lord Neuberger,Lord Justice Patten,Lady Justice Black |
| Judgment Date | 29 July 2011 |
| Neutral Citation | [2010] EWCA Civ 1630 |
| Docket Number | Case No: A3 / 2010 / 2726 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 July 2011 |
[2010] EWCA Civ 1630
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Mr Justice Norris)
Before: Master of the Rolls
(Lord Neuberger of Abbotsbury)
Lord Justice Patten
and
Lady Justice Black
Case No: A3 / 2010 / 2726
Mr Anthony Trace QC and Mr Ciaran Keller (instructed by Messrs Stephenson Harwood) appeared on behalf of the Appellant.
Mr Peter Crampin QC and Mr Ulick Staunton (instructed by Kamberley Solicitors) appeared on behalf of the Respondent.
Lord Neuberger:
This is an appeal from the decision of Norris J given during a trial, indeed during the cross-examination of one of the parties. The case concerns the ownership of a small hotel in London W14, purchased in late 2007 or early 2008 with monies provided by the second claimant, Mr Lee. It is common ground that the 1 st Defendant Ms Wu, was employed as Mr Lee's PA, to use his expression, and that he paid money for her benefit and that of his family. She says that there was a sexual relationship between them, but Mr Lee denies that is so.
Mr Lee and the 1 st claimant, Favor Easy Management Limited, incorporated in the Seychelles, seek a declaration that the hotel and the adjoining property are held on trust for the co-claimant, or alternatively for Mr Lee, and for other relief. The claim was brought after the property had been acquired by another company also called Favor Easy Management Limited, which was incorporated in the British Virgin Islands and is the second defendant, of which Ms Wu was and remains the sole director and shareholder.
As mentioned, one of the main issues between the parties is whether there was, a sexual relationship between Mr Lee and Ms Wu, as Ms Wu alleges and Mr Lee denies. Mr Lee gave evidence and was cross-examined. Ms Wu gave evidence and was cross-examined, and, during her cross-examination, it was put to her that a document, signed or purportedly signed by a Dr Wong dated 23 January 2009, was a forgery, at least insofar as it referred to the fact that she had been "pregnant for 20 weeks": It was also put to her that she had forged that document and had handed it to Mr Lee to suggest to him that she was pregnant as part of her alleged blackmailing of him, which forms the subject matter of an ongoing private prosecution brought by Mr Lee against Ms Wu.
When this was put to Ms Wu in cross-examination, she replied that she had not been responsible for forging this document, if it was forged, and that she had not seen it before. She said that she had handed Mr Lee a document from another doctor, Dr Yeung, and that there may have been some confusion on the part of Mr Lee or his advisers in that connection.
There then followed a request to Ms Wu by Mr Anthony Trace QC, who appeared below as he does before us with Mr Ciaran Keller for Mr Lee, to authorise Dr Wong and Dr Yeung to produce their respective files, she consented to that. Mr Peter Crampin QC, who appeared below as he does before us with Mr Ulick Staunton for Ms Wu, then asked whether he could give her advice in that connection even though she was in the witness box. Norris J agreed, and, as a result of that advice, Ms Wu withdrew her consent. It appears that Dr Wong was prepared, and Dr Yeung may have been prepared, to release their respective files if Ms Wu agreed. On her withdrawing her consent, Mr Trace on behalf of Mr Lee, sought a determination by the judge that the files of Dr Wong and Dr Yeung, who were both doctors in Hong Kong, should have been disclosed pursuant to the standard disclosure obligations of Ms Wu under CPR 31.6, either with her list in the normal way, or pursuant to her ongoing obligation to disclose pursuant to CPR 31.11.
In a judgment, which we have in unapproved, but commendably clearly expressed form, Norris J refused the application. He said this:
"…it is an issue in the action whether she [that was Ms Wu] was prompted in January 2009. The essential question is whether that issue goes to the central issues in this case, or is an issue which goes to her credibility."
The judge then considered three arguments advanced by Mr Trace and concluded that the only argument which had any possible weight was that which questioned whether Ms Wu was pregnant in January 2009, which was an issue that went to her credibility.
In my opinion the judge was right: the issues of whether Ms Wu was pregnant, whether she forged the certificate apparently signed by Dr Wong, and whether there is a certificate signed by Dr Yeung, are all matters which go to her credibility, but to no other issue. If she had been pregnant, that would not prove that she had a sexual relationship with Mr Lee, because she could have been made pregnant by another person. Equally, if she had not been pregnant, that would not mean that she did not have a sexual relationship with Mr Lee: Mr Lee's evidence is that Ms Wu was taking birth control precautions, which emphasised how right that must be.
Accordingly, I proceed on the basis that the question of Ms Wu's pregnancy and the question of what Dr Wong's records and Dr Yeung's records show would very probably go to Ms Wu's credibility, but to no other issue.
CPR 31.6 is in these terms:
"Standard disclosure requires a party to disclose only –
(a) the documents on which he relies; and
(b) the documents which –
(i) adversely affect his own case;
(ii) adversely affect another party's case; or
(iii) support another party's case; and
(c) the documents which he is required to disclose by a relevant practice direction.
CPR 31.11 (i) provides:
"Any duty of disclosure continues until the proceedings are concluded"
CPR 31.12 deals with specific disclosure:
"(1) The court may make an order for specific disclosure or specific inspection.
(2) An order for specific disclosure is an order that a party must do one or more of the following things –
(a) disclose documents or classes of documents specified in the order;
(b) carry out a search to the extent stated in the order;
(c) disclose any documents located as a result of that search.
The question whether those rules apply in the present case is one which had been assumed by all the parties until just after the time that the matter came on for hearing in this appeal. However, there is a logically anterior question, namely whether the documents in the possession of Dr Wong and Dr Yeung were within the scope of Part 31 at all. That question was raised by the court, and Mr Trace and Mr Crampin fairly admitted that it was not a point that either of them had considered. It seems to me, at any rate as at present advised, that there must be a strong argument for supporting the view that the documents on the files of the two doctors were not in the possession, custody or control of Ms Wu. That point may depend on the law of Hong Kong, given that where Dr Wong and Dr Yeung are based and where their files are presumably located, and if they saw Ms Wu, where they would have seen her.
The mere fact that one or each of the Doctors agreed to produce his file if Ms Wu agreed, does not to my mind necessarily mean that the documents were within her control. In that connection, it appears unclear whether Ms Wu actually contacted Dr Yeung, because she said she could not find his address, according to Mr Trace. On the face of it that makes it rather difficult to say that the file was within her control.
However, I am prepared to proceed for present purposes on the assumption made below, namely that the files do fall within the potential ambit of Part 31.
So far as standard disclosure is concerned, one can easily see how, as a matter of ordinary language, it can be said that documents which might impugn the veracity or credit of one of the parties could be said to fall within 31.6(b)(i), in that they "adversely affect his [or her] own case" or, by contrast, "support another party's case".
However, when it comes to documents which relate...
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