Gio Personal Investment Services Ltd v Liverpool and London Steamship Protection and Indemnity Association Ltd and Others (FAI General Insurance Company Ltd intervening)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE POTTER,SIR PATRICK RUSSELL,LADY JUSTICE BUTLER-SLOSS |
| Judgment Date | 21 December 1999 |
| Judgment citation (vLex) | [1998] EWCA Civ J1221-16 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | QBCMF 98/0964/3 |
| Date | 21 December 1999 |
In the action of:
[1998] EWCA Civ J1221-16
Lady Justice Butler-Sloss
Lord Justice Potter
Sir Patrick Russell
QBCMF 98/0964/3
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
COMMERCIAL COURT
(MR JUSTICE TIMOTHY WALKER)
Royal Courts of Justice
Strand, London WC2
BRIAN LEVESON QC & MISS TINA COOKE (Instructed by Clyde and Co., Surrey, GU1 4HA) appeared on behalf of the Appellant
COLIN EDELMAN QC & DAVID JOSEPH Esq. (Instructed by Reynolds Porter Chamberlain, London, EC3A 1AT) appeared on behalf of the Respondent
MISS HELEN DAVIES (Instructed by Barlow Lyde and Gilbert, London, EC3A 7NJ) appeared on behalf of Ocean Marine Mutual Insurance Brokers O.V.
INTRODUCTION
This is an appeal by FAI General Insurance Company Limited ("FAI") from a decision of Mr Justice Timothy Walker 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 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 2nd 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 the 3rd June 1998 onwards as reading days, later indicating that his reading would be completed by 8th June, when the parties re-attended court. By 8 th June, GMR and GAK had settled and GMR proceeded against Chapman & Co and Mr Chapman who did not appear.
On 2nd 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 minimising costs, the judge allots reading days when the parties need not attend trial"
Having received no response, on 5th June 1998 FAI's solicitors pressed again for the documents already requested and added a request for a copy of the reading list which the judge had requested be sent to him together with copies of the documents referred to in it; also a copy of each side's list of witnesses in the order in which they were to be called, as also requested by the judge.
GMR did not comply, and, upon 8th June 1998, Mr Ivory QC was instructed for FAI to attend the trial in order to make urgent application to the judge, FAI suspecting that a settlement of the outstanding part of the trial was in the wind. When Mr Ivory raised the matter, the judge expressed the view that it was inappropriate for FAI to intervene without notice. He indicated that the trial was not going to conclude that afternoon and invited FAI to bring their application at a later stage. FAI issued a summons that day and, upon learning the day after that GMR would not co-operate to provide any of the material requested, indicated that they would proceed with the summons.
On 10th June 1998 Walker J delivered a judgment in respect of the claims against Chapman & Co and Mr Chapman which effectively concluded the litigation. Mr Leveson QC, who now appeared for FAI, immediately applied to inspect and take copies of
(a) the Skeleton Arguments lodged by Counsel with the Judge for the purposes of the Trial together with all documents referred to therein;
(b) the Trial Bundles lodged with the court or such parts have been read by the Trial Judge or referred to during the Trial or in Counsel's Skeleton Arguments lodged with the Court;
(c) the Reading List or Lists submitted by the parties to the Trial Judge after Trial began;
(d) the List or Lists of witnesses submitted to the Judge after Trial began.
The grounds of the application were stated to be:
"That Trial of the action is taking place in open Court and the applicant and any other member of the public, is entitled to access to the said categories of documents."
As foreshadowed by those stated grounds, FAI put their case on the basis of their entitlement as "any member of the public" and asserted that they applied in that capacity so that they could follow and understand the nature of the case. However, they did not conceal the underlying purpose motivating their application. Mr Bell of Clyde and Co. their solicitors, explained that:
"Evidence regarding the course of conduct on which Mr Chapman/Chapman & Co and Mr Karsten/ GAK Re engaged in relation to the Liverpool & London Reinsurances is likely to be highly material regarding the course of conduct on which they engaged on the contemporaneous placements for the Ocean Marine/FAI Reinsurance… In the circumstances, my firm has been seeking access to documentation which has been brought into the public domain as part of the trial which is under way".
Further, Mr Leveson indicated that although FAI had some general knowledge of this litigation it lacked "sufficient specificity", as he put it, in relation to the issues and the documents relevant to them to enable one or more subpoenae duces tecum to be issued against persons who were third parties to the FAI/OMM litigation, and (more important) to be justified should such persons prove unwilling to attend, or move to set such subpoenae aside.
In the light of that information, Walker J rejected the application. In a short judgment, he stated that, while he considered that the court had inherent jurisdiction to make the order sought, in the exercise of his discretion the application would be rejected on the ground that:
".. the application is being put on the basis that these documents are being required so that [FAI] can follow and understand the nature of the case being argued. In fact it is apparent from the evidence that there is a very different motive for making this application. The documents, and in my judgment in particular the copy documents in the trial bundle, are sought by Mr Leveson's clients solely for use in other litigation in which FAI are involved.."
He concluded:
"In my judgment this application has nothing whatever to do with the public interest: it is to do with the commercial interests of FAI and references to the confessed desire to understand the nature of the case being put forward are in effect mere window-dressing."
FAI's application was supplemented during the course of the hearing before Walker J by an application made pursuant to RSC Order 38 Rule 2A(12), for inspection and copies of witness...
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