Harris and Others v Society of Lloyd's
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE DAVID STEEL,MR. JUSTICE DAVID STEEL |
| Judgment Date | 09 September 2008 |
| Neutral Citation | [2008] EWHC 2177 (Comm),[2008] EWHC 1433 (Comm) |
| Docket Number | No. 2007 Folio 1439,Case No: 2007 FOLIO 1439 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 09 September 2008 |
[2008] EWHC 1433 (Comm)
In the High Court of Justice
Commercial Court
Queen'S Bench Division
In The High Court of Justice
Commercial Court
Queen'S Bench Division
MR JUSTICE DAVID STEEL
Case No: 2007 FOLIO 1439
Case No: 2008 FOLIO 182
Paul Stafford (instructed by Grower Freeman) for the Claimants
Richard Jacobs QC (instructed by Freshfields) for the Defendant
The Claimant In Person (assisted By Her Husband)
Richard Jacobs Qc (instructed By Freshfields) For The Defendant
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr. Justice David Steel:
Representation
It is appropriate to start by introducing the parties and their representation. The Claimants in 2007 Folio 1439 are 49 names at Lloyd's. They commenced underwriting variously between 1973 and 1990. The Claimant in 2008 Folio 182 is Mrs Adams, another Lloyd's name. She commenced underwriting in 1977. She has instituted separate proceedings although it is accepted that they raise the same issues of law and fact as in the other action and the strike out application taken out in 2007 Folio 1439 is being treated by consent as extending to her claim.
None of the Claimants are strangers to the extensive litigation that has arisen out of serious difficulties that faced Lloyd's in the 1980s and 1990s. The claimants in Folio 1439 were represented by counsel. In the past, the court had allowed Mrs. Adams to be represented by her husband. Such an arrangement was accordingly permitted in the present action. However at the commencement of the hearing, Mr. Adams in turn made an application that Mrs. Adams should be represented by Mr. Stephen Merrett, the former underwriter and Deputy Chairman of Lloyd's. I refused the application. My reasons for doing so were expressed broadly at the time of my ruling but are now set out in greater detail.
Rights of audience are governed by Section 27 of the Courts and Legal Services Act 1990. Leaving aside the scope for representation by an appropriately qualified advocate, a litigant in person (such as Mrs. Adams) is of course entitled to appear on her own behalf (subsection 2(d)). There remains however a discretion on the part of the court to accord anyone a right of audience in relation to specific proceedings (subsection 2(c)). But it is well established that the court will only accord that right (which would bypass the stringent requirements of the legal professional bodies) in exceptional circumstances: D. v S (Rights of Audience) [1997] 1 FLR 724, Paragon Finance Plc v Noueiri [2001] 1 W.L.R. 2357.
As I have already recorded, the court has already concluded that the circumstances were sufficiently exceptional to allow Mrs. Adams' husband to make submissions on her behalf. However, I had no hesitation in rejecting the application that Mr. Merrett should replace Mr. Adams. My reasons were these:
i) The Claimants in 2007 Folio 1439 are represented by counsel, Mr. Stafford. As might be expected, he has presented their case, in almost all respects in pari materia with Mrs. Adams, with conspicuous thoroughness and clarity.
ii) Mr. Merrett is not legally qualified. In the Commercial Court in particular lay representation is seldom contemplated as permissible: see Section M of the Admiralty and Commercial Court Guide.
iii) Furthermore he is a witness in the case in the sense that extracts from two statements prepared by him and deployed by the Claimants in an attempt to re-open earlier proceedings in the Court of Appeal are relied upon by the Claimants (and in particular Mrs. Adams) in the present hearing.
iv) This feature is of particular significance for the following reason. Despite the acceptance by Mr. Adams on his wife's behalf that her claim stands or falls with the other Claimants, he had in fact sought to pursue a different argument to the effect that RITC (reinsurance to close) as between Lloyd's syndicates constituted a statutory novation by virtue of Section 85 of Insurance Companies Act 1982.
v) This argument is not open to Mrs. Adams. Indeed it is not pleaded. Although I will briefly touch on it in due course, for present purposes the important factor is that it is clear that the submission is a hobby horse of Mr. Merrett's. Indeed it was apparent that Mr. Merrett was anxious to use the opportunity to appear for Mrs. Adams to pursue this argument rather than make submissions in the general interest of Mrs. Adams on the points properly open.
vi) This became all the clearer when Mr. Adams came in due course to make his submissions. It became obvious that he used as his text material prepared wholly or largely by Mr. Merrett and which, in the main, focused on the discrete issue of statutory novation.
Disclosure
There is one other threshold point which I must deal with. On the eve of the hearing, the Claimants made an application for specific disclosure. I now set out my reasons for rejecting that application. The three documents which were the subject of the disclosure application were all associated with an opinion of Mr. Stewart Boyd Q.C. dated 14 April 1993:
i) a note dated 4 October 1991 by Mr. Burling of the Defendant's legal department referred to in paragraph 1 of the opinion;
ii) a note dated 5 April 1993 by Mr. Mallinson, at that time solicitor to the Corporation of Lloyd's, referred to in paragraph 4 of the opinion;
iii) the instructions provided to Mr. Boyd for the purpose of producing the opinion.
The basis of the application was that the Defendant had deployed the opinion in the proceedings thereby waiving privilege of the opinion and thereby effecting a collateral waiver of the privilege in the documents sought: see Nea Karteria Maritime Co. v Atlantic and Great Lakes Steamship Corp. [1981] Com LR 138.
The Defendant's position was as follows:
i) The documents were not relevant and/or alternatively they were not necessary for the fair disposal of the present application.
ii) The Defendant had not deployed the opinion in the proceedings: it had been deployed by the Claimants and it was thereby that its privilege had been lost.
iii) Thus the documents sought remained privileged and that privilege had not been waived.
At the end of the hearing late on Friday 11 April 2008, I refused the application and indicated that I would give my reasons in due course.
Before dealing with the substance of the matter I ought to record the remarkable delay in presenting the application for disclosure which would, in any event, have mitigated strongly against the exercise of any discretion to grant the relief sought:
i) A CMC was fixed by Tomlinson J in December 2007 to take place on 8 February 2008 at which, amongst other matters, any application for disclosure was to be made;
ii) The documents presently sought were requested in correspondence in January 2008;
iii) The CMC was moved to 22 February. The application notice for disclosure of the documents was duly issued on 13 February, the notice itself identifying that the Claimant wished that the issue be dealt with at the CMC;
iv) The Defendant's evidence in response to the application was served on 19 February;
v) In the run up to the CMC hearing there was some debate as to whether there was sufficient time to deal with the application. Whilst the Defendant's position was that there would be time, the Claimants ironically took the opposite view.
vi) The transcript of the hearing before Andrew Smith J demonstrates clearly the willingness of the judge to deal with the application which was opened at some length. In the event the Claimants refused to pursue it and the judge struck the application out on technical grounds but left it open to the Claimants to make a fresh application.
It is well established under the previous procedural rules that the power to order disclosure for the purpose of interlocutory proceedings should be exercised sparingly and then only for such documents as can be shown to be necessary for the just disposal of the application: Rome v Punjab National Bank [1989] 2 All E.R. 136. There are good reasons for concluding that the same if not a stricter approach is appropriate under the provisions of CPR: see Disclosure, Matthews and Malek 3nd Ed. Para 2.68. The delay described above undermines the credibility of the Claimants' protestations that, leaving aside the issue of privilege, the documents are necessary for (or even relevant to) the strike-out application.
Relevance
The Claimants contended that the documents were relevant because:
i) It is said that Mr. Burling's note would establish Lloyd's' view of the nature and effect of RITC and this in turn would illustrate when Lloyd's became aware that the representation they had made to prospective names was untrue. But there appeared to be no issue about what Lloyd's' view of the nature and effect of RITC was. It was regarded as a contract of reinsurance. Indeed it is the Claimants' case that that was Lloyd's view because the complaint is that they sought to deceive the Names by suggesting that it had some other nature and effect. It is clear from the opinion that Mr Burling expressed the view in the note that it was a form of reinsurance. Thus how it is relevant to any issue remains at best wholly obscure.
ii) It is said that Mr. Mallinson's note would indicate what information was provided to names at the Rota Interviews. But Mr. Mallinson's note only purports to refer to the relevant documents all of which are available. The note can add nothing to Mr. Boyd's comment that some of the documents were...
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