Ventouris v Mountain (No. 2) (Italia Express)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BALCOMBE,LORD JUSTICE STAUGHTON |
| Judgment Date | 20 December 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J1220-1 |
| Docket Number | 91/1186 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 1991 |
[1991] EWCA Civ J1220-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
(MR. JUSTICE HIRST)
Royal Courts of Justice
The Master of the Rolls
(Lord Donaldson)
Lord Justice Balcombe
Lord Justice Staughton
91/1186
MR. CHRISTOPHER CLARKE Q.C. and MR. A. J. POPPLEWELL (instructed by Messrs. Ince & Co.) appeared for the Appellant/Defendant.
MR. S. M. TOMLINSON Q.C. and MR. S. M. HOFMEYR (instructed by Messrs. Hill Taylor Dickinson) appeared for the Respondent/ Plaintiff.
This appeal was heard at short notice in the course of a hearing before Hirst J. of a claim under a War Risks insurance policy. It concerned the admissibility of evidence under the Civil Evidence Act 1968.
Since the hearing before Hirst J. stood adjourned and both parties wished to be in a position to resume it at the earliest possible moment, we ruled upon the issues raised in the appeal immediately upon the conclusion of the argument. However, as those issues were of some general interest and importance, we took time to put our reasons into writing. Our judgments record the allegations of underwriters which formed the background to the appeal as they were at the time of the hearing. After our judgments had been written, but before they could be handed down, the defendant by his counsel informed Hirst J. that, in the light of our rulings, underwriters were not in a position to establish those allegations by legally admissible evidence to the requisite standard and that the allegations were accordingly withdrawn. Our judgments should be read in the light of that withdrawal so far as the plaintiff's reputation is concerned, but it has no other or further effect upon those judgments.
The ro-ro ferry boat "Italia Express" was sunk by explosives on 24th March 1988 whilst undergoing repairs alongside a quay at Drapetsona, which is just outside Piraeus harbour. This was admittedly a loss by perils insured against. The plaintiff is the owner of the vessel and assured under the policy. The defendant is a representative Lloyds underwriter. The defence is that the loss was caused by the wilful misconduct of the plaintiff in casting the vessel away.
More specifically underwriters allege that in January 1988 a plot was hatched between the plaintiff (Apostolos Konstantine Ventouris) and his cousin George Dimitrios Ventouris ("GDV") whereby in return for a very substantial payment GDV was to recruit a number of divers to attach explosives to the hull and blow up the vessel. This enterprise was abandoned when on the chosen date (13th February 1988) it was found that another vessel was lying alongside the "Italia Express" and was guarded by frogmen. It is alleged that thereafter without the continued involvement of GDV and without his knowledge the plaintiff himself engaged the divers who achieved the desired objective five weeks later.
Underwriters wish to prove the original conspiracy involving GDV and the plaintiff by means of a number of surreptitious tape recordings of conversations between those alleged to have been involved in the conspiracy, including the divers, and then to invite the court to infer that the loss was caused as alleged. The tapes have been provided by GDV, who himself features in all of the taped conversations, all of which are alleged by underwriters to have taken place after the sinking of the vessel. GDV is both unwilling, because underwriters will not meet his monetary demands, and unable to come to this country to give evidence, being on bail in Greece on terms which preclude his leaving the country. The tapes or copies of the tapes have been deposited with a court in Greece as part of criminal investigative proceedings arising out of the loss of the vessel.
The relevant sections of the Act are as follows:-
"1. Hearsay evidence to be admissible only by virtue of this Act and other statutory provisions, or by agreement
(1) In any civil proceedings a statement other than one made by a person while giving oral evidence in those proceedings shall be admissible as evidence of any fact stated therein to the extent that it is so admissible by virtue of any provision of this Part of this Act or by virtue of any other statutory provision or by agreement of the parties, but not otherwise."
"2. Admissibility of out-of-court statements as evidence of facts stated
(1) In any civil proceedings a statement made, whether orally or in a document or otherwise, by any person, whether called as a witness in those proceedings or not, shall, subject to this section and to rules of court, be admissible as evidence of any fact stated therein of which direct oral evidence by him would be admissible.
(2) Where in any civil proceedings a party desiring to give a statement in evidence by virtue of this section has called or intends to call as a witness in the proceedings the person by whom the statement was made, the statement—
(a) shall not be given in evidence by virtue of this section on behalf of that party without leave of the court; and
(b) without prejudice to paragraph (a) above, shall not be given in evidence by virtue of this section on behalf of that party before the conclusion of the examination-in-chief of the person by whom it was made, except—
(i) where before that person is called the court allows evidence of the making of the statement to be given on behalf of that party by some other person; or
(ii) in so far as the court allows the person by whom the statement was made to narrate it in the course of his examination-in-chief on the ground that to prevent him from doing so would adversely affect the intelligibility of his evidence.
(3) Where in any civil proceedings a statement which was made otherwise than in a document is admissible by virtue of this section, no evidence other than direct oral evidence by the person who made the statement or any person who heard or otherwise perceived it being made shall be admissible for the purpose of proving it:
Provided that if the statement in question was made by a person while giving oral evidence in some other legal proceedings (whether civil or criminal), it may be proved in any manner authorised by the court."
"4. Admissibility of certain records as evidence of facts stated
(1) Without prejudice to section 5 of this Act, in any civil proceedings a statement contained in a document shall, subject to this section and to rules of court, be admissible as evidence of any fact stated therein of which direct oral evidence would be admissible, if the document is, or forms part of, a record compiled by a person acting under a duty from information which was supplied by a person (whether acting under a duty or not) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in that information and which, if not supplied by that person to the compiler of the record directly, was supplied by him to the compiler of the record indirectly through one or more intermediaries each acting under a duty.
(2) Where in any civil proceedings a party desiring to give a statement in evidence by virtue of this section has called or intends to call as a witness in the proceedings the person who originally supplied the information from which the record containing the statement was compiled, the statement—
(a) shall not be given in evidence by virtue of this section on behalf of that party without the leave of the court; and
(b) without prejudice to paragraph (a) above, shall not without the leave of the court be given in evidence by virtue of this section on behalf of that party before the conclusion of the examination-in-chief of the person who originally supplied the said information.
(3) Any reference in this section to a person acting under a duty includes a reference to a person acting in the course of any trade, business, profession or other occupation in which he is engaged or employed or for the purposes of any paid or unpaid office held by him."
"6. Provisions supplementary to ss. 2 to 5
(1) Where in any civil proceedings a statement contained in a document is proposed to be given in evidence by virtue of section 2, 4 or 5 of this Act it may, subject to any rules of court, be proved by the production of that document or (whether or not that document is still in existence) by the production of a copy of that document, or of the material part thereof, authenticated in such manner as the court may approve."
"9. Admissibility of certain hearsay evidence formerly admissible at common law
(1) In any civil proceedings a statement which, if this Part of this Act had not been passed, would by virtue of any rule of law mentioned in subsection (2) below have been admissible as evidence of any fact stated therein shall be admissible as evidence of that fact by virtue of this subsection.
(2) The rules of law referred to in subsection (1) above are the following, that is to say any rule of law—
(a) whereby in any civil proceedings an admission adverse to a party to the proceedings, whether made by that party or by another person, may be given in evidence against that party for the purpose of proving any fact stated in the admission;"
"10 Interpretation of Part I, and application to arbitrations, etc.
(1) In this Part of this Act—
…'document' includes, in addition to a document in writing…
(c) any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid...
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