Shearson Lehman Brothers Inc. v Maclaine Watson & Company Ltd (No. 2)
| Jurisdiction | England & Wales |
| Judge | Lord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Griffiths,Lord Oliver of Aylmerton,Lord Goff of Chieveley |
| Judgment Date | 21 December 1990 |
| Judgment citation (vLex) | [1987] UKHL J1203-3 |
| Date | 21 December 1990 |
| Court | House of Lords |
[1987] UKHL J1203-3
House of Lords
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Griffiths
Lord Oliver of Aylmerton
Lord Goff of Chieveley
My Lords,
The action which gives rise to the present appeal and cross-appeal is one of many proceedings arising out of the financial collapse of the International Tin Council ("the I.T.C."). The hearing of the action commenced before Webster J. on 8 June 1987. On 11 June the I.T.C. obtained leave to intervene to claim that a large number of documents proposed to be adduced in evidence by the parties were rendered inadmissible by article 7(1) of the International Tin Council (Immunities and Privileges) Order 1972 ( S.I. 1972 No. 120) which provides:
"The council shall have the like inviolability of official archives as in accordance with the 1961 Convention Articles is accorded in respect of the official archives of a diplomatic mission."
The objection to the production of the documents, which must all be taken to be relevant to issues arising in the action, was opposed by all parties to the litigation. Between 11 and 28 June a number of affidavits were filed going to the issue of admissibility, but even now the evidence is not closed. On 29 June Webster J. delivered a judgment in which he records that at an early stage all the parties
"agreed with my suggestion that all questions relating to the admissibility of evidence should be deferred until I have given a decision on the questions of principle that arise."
The judge proceeded to give a number of "rulings" on a series of abstract and hypothetical questions of law which had been argued before him. I well understand the considerations which prompted the judge to think that the course he took would be the most convenient and expeditious way of disposing of the issues raised by the intervention of the I.T.C. But with hindsight one cannot escape from the conclusion that great difficulties have arisen from the attempt to resolve questions of law without, first, either finding the facts to which the law falls to be applied or requiring the parties, by way of pleading or otherwise, to set out the facts they allege with sufficient particularity to raise specific questions of law for decision.
Neither side was content with the judge's rulings and both appealed to the Court of Appeal. The matter came before Dillon and Mustill L.JJ. and Sir Roualeyn Cumming-Bruce. On 31 July Dillon and Mustill L.JJ. delivered separate reserved judgments. Sir Roualeyn Cumming-Bruce expressed agreement with both. The views of Dillon and Mustill L.JJ. differed significantly from those expressed by Webster J. and, at least in some respects, with each other. The difficulties arising from the hypothetical and academic nature of the exercise become fully apparent when one looks at the formal order which was drawn up to give effect to the decision of the Court of Appeal. The order sets out what is described as the "ruling" of Webster J. in a series of 11 propositions, some of them qualified by such adverbial phrases as "prima facie" or "as I presently think," but proceeds to make no order on the appeal or cross-appeal. No doubt the intention was that the matter should go back to Webster J., leaving him to extract and apply as best he could the propositions of law to be found in the two main judgments of the Court of Appeal. The discussion as to whether leave to appeal to your Lordship's House should be granted, which followed the handing down of the judgments, shows that the members of the Court of Appeal were fully aware of the acute difficulty of dealing with the case in the absence of any findings or assumptions of relevant fact. Dillon L.J. observed at one point:
"It is a problem which really needs to be, I would have thought, in a much more final shape before their Lordships could properly be invited to give any guidance on it."
The Court of Appeal refused leave to appeal.
When the petitions for leave to appeal, presented by the I.T.C., on the one side, and all the defendants in the action, on the other, came before my noble and learned friends Lord Keith of Kinkel, Lord Brandon of Oakbrook and myself, sitting as the Appeal Committee, we fully shared the view expressed by Dillon L.J. in the remark quoted. But our great reluctance to grant leave to appeal was overcome by the fear convincingly expressed on both sides that the alternative course of sending the matter back to Webster J. to find the facts, with the probability of fresh appeals to the Court of Appeal and to this House ensuing, would be likely to increase the already considerable and regrettable delay in the disposal of the action occasioned by the intervention of the I.T.C. Leave to appeal was accordingly granted, but the Appeal Committee stipulated that the parties should attempt to agree assumptions of fact which it was hoped would be sufficient to narrow and define the issues to be determined. A first draft of the agreed assumptions was put before the Appeal Committee before leave was granted and a more elaborate version was presented as the basis for argument of the appeal. Even now I am not satisfied, on the one hand, that the agreed assumptions are, in all cases, sufficiently precise and specific to provide a wholly satisfactory foundation for authoritative preliminary rulings of law nor, on the other hand, that they do not, in some cases, raise questions that probably will turn out to be quite academic. However, in the way the case has developed, we can only do our best with the material before us to provide an authoritative basis for the resolution of the issues.
The "Agreed Assumptions of Fact" are set out in a document so entitled which I must quote in full:
"The parties to the appeal agree to the assumptions of fact set out below for the purposes of this appeal. In each case the term 'I.T.C. document' refers to: (a) an original, or (b) one of a printed run, or (c) a photocopy of: (i) a document of record, or (ii) a document drafted by the I.T.C., or (iii) a document circulated within the council of the I.T.C., or (iv) a document received by the I.T.C.
1. An I.T.C. document was supplied to a third party (i) with the consent of the I.T.C. or (ii) without the consent of the I.T.C. being asked for or given, by: (a) a member of the I.T.C. to whom it was distributed in the ordinary course of the I.T.C.'s business; (b) a member of a delegation to the I.T.C. without the authority of the relevant member [of the I.T.C.]; (c) an adviser to a member of the I.T.C. which obtained the document as in (a); (d) an institution having observer status at the I.T.C. to whom it was distributed in the ordinary course of the I.T.C.'s business; (e) the executive secretary of the Association of Tin Producing Countries, whose membership includes producer members of the I.T.C.
2. An I.T.C. document was supplied to a third party by an officer or by another member of staff of the I.T.C: (a) with actual authority; (b) with ostensible authority; (c) without any authority.
3. Facts as in (2), but the document was supplied to a third party with whom the I.T.C. dealt in order to reassure that third party of the financial position of the I.T.C.
4. Facts as in (2), but the document was supplied to a third party to assist in connection with settlement negotiations after the I.T.C. became unable to meet its commitments.
5. Facts as in (1), (2), ( 3) or (4) but the third party recipient made a copy of the document and sent the copy to another third party.
6. An I.T.C. document which had been discussed or referred to in the settlement negotiations between the I.T.C. and third parties without objection on the part of the I.T.C. subsequently came into the hands of: (a) a third party with whom it had been discussed or referred to, or (b) another third party.
7. The House of Commons Select Committee published an I.T.C. document in the minutes of evidence of the select committee inquiry. Those minutes of evidence were ordered to be published by the House of Commons, and are publicly available from H.M.S.O.
8. A copy of an I.T.C. document which had been before the House of Commons Select Committee was placed in the House of Lords Library. It is there available for inspection by members of the public.
9. An I.T.C. document was released by the U.S. authorities under the United States Freedom of Information Act.
10. An I.T.C. document whose provenance was unknown became widely available in the market and was referred to or quoted from in press reports.
11. A copy of an I.T.C. document was received from a private individual. The party who received it does not know where or how the private individual obtained it.
12. A document was prepared by a third party which contained information derived from an I.T.C. document and was sent to the I.T.C. A copy of this document was subsequently sent out by the I.T.C. to member states under cover of an I.T.C. frontsheet marked 'Confidential.'
13. Information was derived by third parties from I.T.C. documents in each of the categories referred to above. Some or all of this information was included in documents prepared by third parties and those documents were neither sent to nor seen by the I.T.C."
Before addressing the issues which must be resolved in order to determine whether documents in the several categories contemplated by the assumed facts are rendered inadmissible by article 7(1) Order of 1972 it is appropriate to sketch the background and to refer to some preliminary considerations.
The I.T.C. is an international organisation presently constituted under the Sixth International Tin Agreement, a treaty concluded in 1981. There are 22 members...
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