Meat Corporation of Namibia Ltd v Dawn Meats (uk) Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 07 March 2011 |
| Neutral Citation | [2011] EWHC 474 (Ch) |
| Docket Number | Case No: HC08C03503 |
| Court | Chancery Division |
| Date | 07 March 2011 |
[2011] EWHC 474 (Ch)
Before : Mr Justice Mann
Case No: HC08C03503
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
John Taylor (instructed by Collyer Bristow LLP) for the Claimant
Robert Howe QC and Mark Vinall (instructed by DLA Piper UK LLP) for the Defendant
Hearing dates: 16th February 2011
JudgmentMr Justice Mann :
This is an application by the claimant, MeatCo, against the defendant, Dawn, relating to expert evidence which it is intended should be given in the trial of the action commencing at the beginning of May. After a previous trial date was vacated, the defendant identified a new expert whom it wishes to call, a Mrs Burt-Thwaites. The claimant opposes that and seeks a direction that permission to call her be refused because she is in possession of confidential and privileged information concerning the claimant which is said to prevent her from acting or continuing to act for the defendant, and because she is said to lack the independence necessary of an expert.
I do not need to set out the details of this action. It is sufficient to say that it relates to an agency agreement previously existing between the claimant and the defendant and alleged breaches by the defendant of that agreement. The agency agreement was terminated in November 2008. Permission was given to each party to call one "meat industry expert" to address a specified list of issues. The list of issues is divided into three headings:
a) Market conditions in 2007–2009, including the EU market for beef, the position of MeatCo within that market and the role of certain Smithfield traders within that market.
b) Pricing – the method for ascertaining the market price, factors affecting the market price, whether new season Namibian beef arrived late in the UK in 2008, the impact of allegedly late arrival of that beef and whether sales of MeatCo product by Dawn were below market price.
c) Market practices or industry standards relevant to the method in issue, including human resources necessary to conduct an agency, stock management, invoice and debtor management, forward selling, sales of different cuts, branding, customer complaints, dealing with associated or related companies and "whether Dawn fails to conduct the agency in accordance with the standards of a reasonable meat agent in the respects alleged by MeatCo".
Mrs Burt-Thwaites is a retired meat trader and a vice-president of the International Meat Trade Association (IMTA). It seems that it is accepted by both sides in this action that in terms of expertise she is suitably qualified to be an expert in this case – that is a sensible inference from the fact that both sides tried to instruct her and one side succeeded. The claimant tried first. In May 2010 its UK subsidiary's managing director, Mr Brian Perkins (who used to work for Dawn) contacted her with a view to asking her to act as the claimant's expert. He had various conversations with her on the telephone and sent her some emails.
Mr Perkins' evidence is that when he first approached her she said she was expecting to hear from the defendant with a view to an engagement as a consultant, and if she agreed it would exclude her from any role as an expert for MeatCo. She was therefore initially hesitant about becoming involved in the litigation. However, a short time later she agreed to consider the request, from which Mr Perkins inferred that the consultancy prospect was not going ahead. As a result he sent her an email headed "In confidence – expert witness" on 31st May 2010. His witness statement claimed privilege for that email, and asks me to infer that he was communicating with her in confidence. It is common ground that he should be treated as so doing. Indeed it is common ground that the contents of his communications are covered by litigation privilege. Since the email was confidential, he did not set out the contents in his first witness statement; he merely indicated its headings. However, the full email, together with some of the rest of his email traffic with Mrs Burt-Thwaites, was exhibited to a later witness statement which was not served on the defendant. The claimant invited me, if I thought fit, to look at those emails in order to establish the nature of the communications in them so that I could determine the extent of the confidentiality and in particular whether the disclosure in those emails put Mrs Burt-Thwaites in a position in which she could not properly accept instructions as an expert for the other side. The defendant agreed to that course, and indeed encouraged it. In those circumstances I adopted that course. The defendant did not see the content of those emails.
Mr Perkins sent another email dated 1 June 2010, again headed "In confidence – expert witness" which he described in general terms in his witness statement; again, he did not wish to set out the full content. He says he made reference to the fact of and details of offers made by MeatCo in the litigation and the reason behind such offers, tactics concerning mediation, his view of the litigation and Dawn's stance in relation to mediation. This information was said to be based on legal advice that solicitors had given to MeatCo.
On 2nd June 2010 Mr Perkins telephoned Mrs Burt-Thwaites to discuss her acting as expert. His evidence was that she stated at this point that she agreed to act as expert for MeatCo, and they agreed to meet during the week commencing 20th June 2010 when she would be back in the UK. This obviously did not amount to a formal retainer, so far as there was an agreement at all.
During at least one further telephone call Mr Perkins says that he discussed the facts of and details of offers that MeatCo had already made, and what he felt were the strengths and weaknesses of the respective cases, who he felt was likely to win and tactics for mediation and settlement, together with the sort of terms that MeatCo would be prepared to settle on. Mr Perkins claims that by an email of 3rd June he informed his solicitors that Mrs Burt-Thwaites had agreed to act as MeatCo's expert.
In further telephone calls after that date Mr Perkins says that Mrs Burt-Thwaites indicated she had changed her mind – she thought that her diary commitments would not permit her involvement. He tried to reassure her and she said she would "sleep on it" but also reassured him that if she was not going to act on behalf of MeatCo then she would not act on Dawn's behalf either. In due course on 9th June 2010 she emailed saying that, looking at her diary, it would be tricky for her to be available. She added:
"There may also be a conflict of interest with my other activities."
She therefore regretted she would not be able to assist.
Mr Perkins responded by acknowledging what he regarded as bad news, and stating that he relied on her "complete confidentiality with our discussions…[the disclosed] information divulges views and opinions that are of a highly confidential and critical nature to the bearing of the issue discussed and we now need for you to treat this in complete confidence." She responded:
"I apologise again that I cannot accept this role, but do stress that I have not, and will not, divulge any of our discussions. Please be assured that I have no involvement with your case and would not discuss it with anyone."
Mrs Burt-Thwaites has provided a witness statement dealing with the events of this period. She accepts that she was telephoned by Mr Perkins, when she was on holiday in France not long after a sudden family bereavement. She says she kept the conversations as short as she could and did not want to talk about the detail. She does not deal with the initial telephone calls in which she is said to have been waiting to hear about a consultancy, but acknowledges receipt of the emails. She does not remember specific detail about the telephone call on 2nd June, but the way she deals with it indicates that she does not accept that she agreed in principle to act as an expert. She says that the conversation included generalities and a certain amount of persuasion. She does recall some discussion about "the meat market in 2008". She does not think that they discussed "in any detail" the strengths and weaknesses of the respective cases. She says that in response to Mr Perkins' cajoling she did eventually agree that she would be able to make time to act, and if Mr Perkins informed MeatCo's solicitors that she had done that, then she accepts she may have done so at the end of the conversation of 2nd June. However, until the present dispute about her appointment arose she had forgotten that she had ever agreed to act.
She then goes on to deal with her decision not to act for MeatCo. She sent her email withdrawing because she understood the trial would take place in January or February 2011 and she had planned to be in South Africa for most of those months. The reference to "a conflict of interest" was a reference to discussions which she says she and Dawn were having about Dawn's sponsoring her attendance at the IMTA, and the fact that Dawn had expressed an interest in her providing training to their employees (which has not actually been pursued).
On 25th June 2010 Dawn's solicitors told MeatCo's solicitors that they were instructing a Mr Richard Brown as their meat industry expert. MeatCo had no observations on that appointment. In January 2011 MeatCo told Dawn's solicitors that Mr Craig McKinlay was to be its meat expert. There was to be a trial in November 2010, but in August it was agreed it would be vacated because of a slippage in the timetable. It was re-fixed for May 2011.
It appears from the evidence that the defendant then had second thoughts about using Mr Brown as its expert. It...
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