Harmony Shipping Company S.A. v Saudi Europe Line Ltd (Good Helmsman)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE CUMMING-BRUCE,LORD JUSTICE WALLER,LORD JUSTICE ACKNER,LORD JUSTICE WATKINS |
| Judgment Date | 18 November 1980 |
| Neutral Citation | [1979] EWCA Civ J0503-1 |
| Judgment citation (vLex) | [1980] EWCA Civ J1118-5 |
| Docket Number | 1978 H. NO. 320,1978 H No.320 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 November 1980 |
[1979] EWCA Civ J0503-1
The Master of The Rolls (Lord Denning)
Lord Justice Waller and
Lord Justice Cumming-Bruce
In The Supreme Court of Judicature
Court of Appeal
On Appeal from The High Court of Justice
Queen's Bench Division
Commercial Court
(Mr. Justice Lloyd)
MR. C. BATHURST, Q. C. and MR. P. GOLDSMITH (instructed by Messrs. Holman, Fenwick & Willan) appe" ared on behalf of the Plaintiffs (Appellants).
MR. J. WILMERS, Q. C. and MR. A. CLARKE, Q. C. (instructed by Messrs. Thomas Cooper & Stibbard) appeared on behalf of the Defendants (Respondents) Saudi Europe.
MR. J. McDONNELL (instructed by Messrs. John Harte & Co.) appeared on behalf of the Defendant (Respondent) Derek Davis.
Mr. Davis is an expert in handwriting. He finds himself in an embarrassing position. He has been consulted by both sides in an action. The question is whether he should give evidence for one side without the consent of the other.
Harmony Shipping Co. S. A. own a ship called the "Good Helmsman". They allowed a Saudi Arabian company the use of that ship. Hire would be payable to the plaintiffs for the use of that ship during the time the defendants had it. The case involves the question of a charter party. The defendants, by one of their agents, signed a charterparty for the hire of this vessel, the "Good Helmsman". They signed it in December 1976. The ship owners sue upon that charterparty. They say that the ship was delivered under it and that the charterers are liable for the hire accordingly. But the defendants seek to avoid their obligations under that charter-party. They say, "It is a sham. It was never intended to be a real charterparty. It was only signed so that it could be taken to the bank in order that the plaintiffs could raise money from the bank on it". That is not a very laudable defence: but that is what the defendants say.
A question has arisen as to the validity of a particular document which appears to have come into being on the 9th February, 1977- I is a letter from the Harmony Shipping Co. to the master of the "Good Helmsman". It says: "Re charter party dated December 3rd 1976. Dear Captain, Enclosed please find a copy of charter party dated December 3rd 1976 attached with adendem (sic) dated January 22nd 1977 between Harmony Shipping Co. S. A. and Saudi Europe Line. Please treat the charterers like owners and offer them the most possiblefacilities".
If that is a genuine, good, authentic letter, it goes far to show that this was a genuine charterparty - intended to be acted upon by the master of the vessel.
The defendants say that that is not a good, valid or genuine document. Only carbon copies were produced of it: and one carbon seems to differ from an earlier one.
In order to prove that the-letter was genuine and authentic, a firm of London solicitors, Messrs Holman, Fenwick & Villan, acting for the plaintiffs decided to obtain the services of a handwriting expert. They approached Mr. Davis.
Mr. Davis is a very busy man. We have been told that he works on about 200 cases at any one time. He always does his best to avoid accepting instructions from more than one side in any particular case. That is one of his professional rules. He maintains a systematic index record of instructions which he has received.
When Messrs. Holman, Fenwick & Willan decided to consult Mr. Davis, he happened to be engaged in another case in these courts and was waiting to be called as a witness. After communicating with his secretary, it appeared to Mr. Davis that he had not been consulted by anyone else in this case. So he saw Mr. Robinson of Messrs. Holman, Fenwick & Villan on that day (the 27th February) outside Court 26 in this building. At that interview the carbon copies of the letter were produced to Mr. Davis. He expressed his opinion as to the genuineness and authenticity of one or other of them. At the same time there was discussion about his fee. There was communication between counsel and Mr. Davis. He said thatit was not his practice to accept instructions from one side once he had been instructed by the other side. Something A was said to the effect that he would give his usual undertaking that he would not accept instructions from the other side.
I think it may be inferred that Mr. Davis said that in his opinion the letters were not genuine. So his evidence B would not help the plaintiffs, the clients of Messrs. Holman, Fenwick & Willan. Therefore they told him that they would not be wanting his assistance again: but, if they did, they would let him know. That was on the 27th February. That was all that Mr. Davis heard about the matter from the plaintiffs' side.
In April of this year Mr. Davis was being consulted by Messrs, Thomas Cooper & Stibbard about another case. Then, on Friday, 6th April, he received a message from Messrs. Thomas Cooper & Stibbard asking him whether he could give his opinion on some documents which had been brought in. He said he would. He saw one of the partners from Messrs. Thomas Cooper & Stibbard. He examined the documents and gave his opinion of them to the partner concerned. He probably said that they were not genuine. So his evidence would help the defendants, the clients of Thomas Cooper & Stibbard. But in the course of his conversation with the partner from Messrs. Thomas Cooper & Stibbard something was said as a result of which, for the first time, it occurred to Mr. Davis that he had already been consulted by the other side. So he referred to his file and realised it might be the same matter. Immediately he told the partner from Messrs. Thomas Cooper & Stibbard, "I cannot accept any further instructions in the matter since I have already been consulted by the other side".
There it is. On the 27th February he had given his opinion on some of the documents to the solicitors for one side and then on the 6th April he had given his opinion on like documents to the solicitors for the other side. He had done it quite inadvertently. Having discovered that he had given his opinion to the other side, he said he could go no further.
Messrs. Thomas Cooper & Stibbard wanted his evidence because they realised it would be helpful to them. They attended at counsel's chambers. A decision was reached that they would subpoena Mr. Davis to give evidence on their behalf. That is what they did. They issued a subpoena ad testificandum on Mr. Davis so that he should give evidence in the case as to his opinion on the genuineness of these letters - to the effect that they were not genuine. The plaintiffs took objection. They said that Mr. Davis should not have been subpoenaed. They said that the subpoena ought to be set aside because he should not give any evidence as he had already been consulted by them.
The trial has been going on for a long time. Mr. Justice Lloyd has been considering the case for some weeks. He has ruled that Mr. Davis is compellable and ought to give evidence as to his opinion of these documents. He said that there was no reason for debarring him from doing so, but, as it was a difficult point which had never arisen before, he adjourned the case pending the decision of the Court of Appeal as to whether he was right or wrong.
So we have before us a question of principle. If an expert witness has been consulted by one side and has given his opinion to that side, can he thereafter be consulted andsubpoenaed by the other side to give his opinion on the facts of the case? That is the issue which this court has to decide.
So far as witnesses of fact are concerned, the law is as plain as can be. There is no property in a witness. The reason is because the court has a right to every man's evidence. Its primary duty is to ascertain the truth. Neither one side nor the other can debar the court from ascertaining the truth either by seeing a witness beforehand or by purchasing his evidence or by making communication to him. In no way can one side prohibit the other side from seeing a witness of fact, from getting the facts from him and from calling him to give evidence or from issuing him with a subpoena. That was laid down by the Law Society in their Guide to the Professional Conduct of Solicitors. It was affirmed and approved in 1965 by the then Lord Chief Justice and the judges. It is published in the Law Society Gazette for February 1963 I says: "The Council have always held the view that there is no property in a witness and that so long as there is no question of tampering with the evidence of a witness or suborning him to change his story, then it is open to the solicitor for either party in civil or criminal proceedings to interview and take a statement from any witness or prospective witness at any stage in the proceedings, whether or not that witness has been interviewed or called as a witness by the other party". That principle is established in the case of a witness of fact: for the plain, simple reason that the primary duty of the court is to ascertain the truth by the best evidence available. Any witness who has seen the facts or who knows the facts can be compelled to assist the court and should assist the court by giving that evidence.
The question in this case is whether or not that principle applies to expert witnesses? They may have been told the substance of a party's case. They may have been given a great deal of confidential information. On it...
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