Three Rivers District Council v Governor and Company of the Bank of England (No. 4)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Chadwick |
| Judgment Date | 07 August 2002 |
| Neutral Citation | [2002] EWCA Civ 1182,[2002] EWCA Civ 1071 |
| Docket Number | Case No: A3/2002/1276,A3/2002/1276 A3/2002/1280 A3/2002/1276 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 August 2002 |
[2002] EWCA Civ 1071
Master of the Rolls Lord Justice Phillips
Lord Justice Chadwick
Lord Justice Keene
A3/2002/1276
A3/2002/1280
A3/2002/1280
A3/2002/1276
IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH
COURT OF JUSTICE
QUEENS BENCH DIVISION
COMMERCIAL COURT
GORDON POLLOCK QC, DAVID MILDON QC and BARRY ISAACS(Instructed by Lovells) appeared on behalf of the Three Rivers DC & Oths.
NICHOLAS STADLEN QC, BANCIM THANKI and BEN VALENTIN (Instructed by Freshfields Bruckhaus Derringer) appeared on behalf of the Bank of England.
CHARLES HOLLANDER QC and SARAH LEE(instructed by Treasury Solicitor) appeared on behalf of H.M Treasury.
RULING
Tuesday, 16th July 2002
RULING
LORD PHILLIPS MR: Before the judge below, Mr Stadlen on behalf of the Bank of England, urged that whether or not the judge had jurisdiction to accede to the discovery order sought, he ought in his discretion to dismiss the application because of the effect that acceding to it would have upon the timetable.
The judge dealt with the issue of law as to whether he had jurisdiction to make the order and concluded that he did and gave permission to appeal in relation to that.
So far as the exercise of his discretion is concerned, he certainly understood that he had adjourned that issue and reserved it to himself to consider in the light of further developments, including further evidence he anticipated he would receive from the Treasury Solicitor as to the impact of a discovery order on the timetable.
We are not in a position to evaluate those issues as we do not have the relevant material, and it seems to us that if we dismiss the appeal that has been made on the issue of law, the matter should plainly go back to the judge to decide what follows from that.
[2002] EWCA Civ 1182
The Master of the Rolls
Lord Justice Chadwick and
Lord Justice Keene
Case No: A3/2002/1276
A3/2002/1280
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (COMMERCIAL COURT)
(Mr Justice Tomlinson)
Mr Gordon Pollock QC, Mr David Mildon QC & Mr Barry Isaacs (instructed by Messrs Lovells) for Three Rivers DC & ors
Mr Nicholas Stadlen QC, Mr Bankim Thanki & Mr Ben Valentin (instructed by Messrs Freshfields Bruckhaus Deringer) for The Bank of England
Mr Charles Hollander QC & Miss Sarah Lee (instructed by the Treasury Solicitor) for HM Treasury
This is the judgment of the Court.
For some nineteen years prior to its collapse in July 1991 Bank of Credit and Commerce SA (BCCI) carried on business in the United Kingdom as a deposit taker. From June 1980 it did so under a licence granted by the Bank of England (the Bank) pursuant to section 3(2) of the Banking Act 1979. The widespread concern in the financial community—and, more generally, amongst those members of the public who were depositors—as to the circumstances in which senior employees of BCCI had been able to perpetrate what was perceived as fraud on a vast scale led, within a very short time of its collapse, to the setting up of an inquiry into the supervision of BCCI under the Banking Acts. Lord Justice Bingham was appointed to conduct that inquiry. He submitted his report (the Bingham report) to the Chancellor of the Exchequer and the Governor of the Bank in July 1992. The report – but not the eight appendices to the report – were published in October 1992 as HC Paper 198 (1992–93).
These proceedings were commenced in May 1993. The claimants are former depositors in BCCI. The claim includes allegations of misfeasance in public office by officials of the Bank. Much of the claimants' pleaded case is, necessarily, based upon material taken from the Bingham report. As Lord Hope of Craighead observed on the second of the two occasions on which interlocutory appeals have been before the House of Lords:
"The present case is, as everyone concerned with it has recognised, one of a quite exceptional character. The issues of fact which the claimants seek to raise are highly complex. They relate to matters in which they were not directly involved, as they were third parties to the system of regulation which was set up to protect them. They involve meetings and discussions between many parties at which they were not represented and they extend, through no fault of theirs, over a very long period." [2001] 2 All ER 513, 544a-b
The procedural history of the action so far is fully set out in the speech of Lord Hope to which we have just referred. It is unnecessary to rehearse that history in this judgment. It is sufficient to note that, in the first interlocutory appeal, reported at [2000] 2 WLR 1220, the House of Lords established the test to be applied in determining whether there has been misfeasance in public office; and, in the second appeal, ( [2001] UKHL/16, [2001] 2 All ER 513, held (Lord Hobhouse and Lord Millett dissenting) that the claim in respect of misfeasance in public office should proceed to trial.
In the course of his speech in the second appeal, after pointing out that the claimants had not had the benefit of discovery of documents or the obtaining of answers to interrogatories, Lord Hope observed, at paragraph [30]:
"The assumption can properly be made at this stage that the narrative which the [Bingham] report contains will in due course be capable of being established by evidence once the claimants have obtained access to the relevant documents." [2001] 2 All ER 513, 523h
And, at paragraph [32]:
"It can, as I have said, be assumed that if the claim is not struck out the claimants will in due course have access to the evidence which provides the source material for that narrative, and that that evidence will be capable of being led by them at the trial." [2001] 2 All ER 513, 524b
Lord Steyn, at paragraph [6] ( [2001] 2 All ER 513, 517e), said that he did not share the confidence of the judge and the Court of Appeal that discovery and cross-examination would not produce significant materials assisting the claimants. This, he thought, was a case which should be examined and tested with the procedural advantages of a fair and public trial; and was a case in which the judge "will wish to proceed to trial with due despatch and a minimum of technical interlocutory hearings" –ibid, at paragraph [8] ( [2001] 2 All ER 513, 517h). Lord Hutton expressed similar views, at paragraphs [147] and [151] ( [2001] 2 All ER 513, 563j, 564j).
The applications for disclosure
It is against that background that the claimants made the applications for disclosure of documents with which we are now concerned. They are made, respectively, under CPR 31.12 and CPR 31.17. It is convenient to set out the relevant provisions in those rules:
"31.12 (1) The court may make an order for specific disclosure or specific inspection.
(2) An order for specific disclosure is an order that a party must do one or more of the following things –
(a) disclose documents or classes of documents specified in the order; …
31.17 (1) This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings.
(2) The application must be supported by evidence.
(3) The court may make an order under this rule only where –
(a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and
(b) disclosure is necessary in order to dispose fairly of the claim or to save costs
(4) An order under this rule must –
(a) specify the documents or the classes of documents which the respondent must disclose; …"
Each of those rules must be read in conjunction with CPR 31.8, which provides that :
"31.8 (1) A party's duty to disclose documents is limited to documents which are or have been in his control.
(2) For this purpose a party has or has had a document in his control if –
(a) it is or was in his physical possession;
(b) he has or has had a right to possession of it; or
(c) he has or has had a right to inspect or take copies of it."
And it must be kept in mind that disclosure is not sought as an end in itself. The object of disclosure (at least in this case) is to enable the claimants to inspect the documents disclosed. In that context, the provisions of CPR 31.3(1) are relevant:
"31.3 (1) A party to whom a document has been disclosed has a right to inspect that document except where –
(a) the document is no longer in the control of the party who disclosed it;
(b) the party disclosing the document has a right or a duty to withhold...
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