Versloot Dredging Bv v Hdi Gerling Industrie Versicherung Ag & 6 Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Christopher Clarke |
| Judgment Date | 08 February 2013 |
| Neutral Citation | [2013] EWHC 581 (Comm) |
| Docket Number | Claim No: 2011 Folio 1465 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 08 February 2013 |
[2013] EWHC 581 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
7 Rolls Building,
Fetter Lane,
London EC4 1NL
Mr Justice Christopher Clarkehis Honour Judge Hullhis Honour Judge Hullhis Honour Judge Hull
Claim No: 2011 Folio 1465
MR CHIRAG KARIA QC (instructed by SACH Solicitors) appeared on behalf of the Claimant.
MR N IGEL JACOBS QC (instructed by Ince & Co LLP) appeared on behalf of the Defendants.
(As Approved)
Digital Transcript of Wordwave International, a Merrill Corporation Company 165 Fleet Street, 8th Floor, London, EC4A 2DY Tel No: 020 7421 4046 Fax No: 020 7422 6134 Web: Email: (Official Shorthand Writers to the Court)
The claimants apply for an injunction requiring the defendant underwriters and their solicitors to withdraw their instruction and/or request and/or encouragement to Mr Gravendeel of Doldrums not to talk to and/or provide evidence and/or information to the claimants' solicitors outside the presence of the defendants' solicitors, and to restrain them from inducing or encouraging Mr Gravendeel not to talk to or provide information and evidence to the claimants outside the presence of the defendants' solicitors, or in any way seeking to restrict or impede the claimants' access to Mr Gravendeel for the purpose of interviewing him and obtaining evidence and information from him.
Mr Han Gravendeel is the surveyor from Doldrums, who is engaged by the producing brokers, on behalf of the underwriters, to determine the cause of the casualty and the extent of the loss. He attended at Gdansk (the port of refuge) and Bremerhaven, where permanent repairs were undertaken. He interviewed the crew, surveyed the vessel, reported to underwriters, reviewed repair options and attended meetings at the claimants' offices. He carried out tests on parts of the ship and liaised with average adjusters. He produced a detailed survey report dated 1 December 2010 to underwriters. The claimants had no surveyors themselves, but they had unfettered access to Mr Gravendeel himself. Mr Gravendeel's report of December 2010 has been disclosed to the claimants. The defendants have also served a very short statement from Mr Gravendeel dated 31 August 2012, which confirms his attendance in Gdansk and that he made two preliminary reports on 8 February and 1 March 2010. This statement was accompanied by a Civil Evidence Act notice, saying that he may not be called at trial because he was beyond the seas and was not compellable to attend. That was interpreted by the claimants as meaning that it was not intended that he should be called. It has, however, now become apparent that he will attend the trial and will be available for cross-examination.
The claimants wish to interview Mr Gravendeel on a wide range of topics because of his intimate knowledge of the vessel in his capacity as a professional surveyor, and they wish to do so otherwise than in the presence of representatives of the defendants or their solicitors. They want his factual evidence and technical judgment on a range of matters.
It is necessary to refer to the sequence of events. On 4 October 2012 the producing broker recorded as follows:
"Just spoken to Han Gravendeel. Han is prepared to act as witness, provided he is allowed to and it does not harm his position. I told him A/he is allowed, and B/it does not harm him. He is simply asked to tell the truth."
That message was relayed to Mr Cashman of Sach & Co, the claimants' solicitors. On the same day, Mr Cashman replied:
"Turning up to Court and telling the truth cannot harm Han's position in my view.
I have no doubt it will not please Gerling [the leading underwriters] or their lawyers. They do not intend to call him as a witness for reasons best known to themselves."
On 19 October Mr Cashman emailed to Mr Gravendeel to make arrangements to meet him, and Mr Gravendeel replied saying that he had appointments on the day proposed and said, "Let me try to arrange something and I will come back to it next Monday." On 22 October, the next Monday, Mr Gravendeel sent an email to Mr Billowes of Ince & Co, saying:
"Last Friday I received a request from Jim Cashman, solicitor at Sach Solicitors representing Chris Kornet in this matter, to have a meeting to discuss this matter at our office. See email below."
There was attached the email of 19 October to which he referred.
"Can you please advise if we can agree/participate with this meeting? Look forward to your soonest reply."
Fifteen minutes later, Mr Billowes replied:
"Dear Han, This request takes us by surprise as much as you! There is nothing to stop a party approaching any witnesses of fact, but as you obviously appreciate, you are appointed by hull underwriters to provide not only factual evidence but also technical evidence, and we believe it will be wholly inappropriate for Mr Cashman to talk to you about any such issues.
In the circumstances we suggest that you respond to Mr Cashman along the following lines:
'Dear Mr Cashman,
We have sought instructions from our principals the insurers, through their lawyers Ince & Co, regarding your proposed meeting. They have asked us to decline, for reasons that they will be writing to you on separately.'"
The reference to "technical" advice was a reference to the fact that Mr Gravendeel had been involved in discussions with Ince & Co and the defendants' expert as the case developed after his original report, as well as giving technical advice at the time of the original casualty. Three minutes later, Mr Billowes himself emailed to Mr Cashman in the following terms:
"Dear Jim, We are surprised to hear from our clients' surveyors that you have approached them directly for a meeting to discuss this case. We believe such conduct to be wholly inappropriate where those surveyors have been retained to provide technical advice to our clients.
Please confirm that you and your clients will refrain from any such conduct in the future.
If you have any questions of fact that you wish to put to our clients' surveyors please address them to us."
He was thus making a distinction between what he termed "technical advice", where he suggested it was wholly inappropriate for the surveyors to provide information or to attend a meeting to discuss the case, and questions of fact which he suggested should be addressed to the surveyors through Ince & Co. A little later on the same day, Mr Gravendeel emailed to Mr Cashman, saying:
"As we have been appointed on behalf of/by underwriters in this matter, we have sought instructions from our principals the insurers, through their lawyers Ince & Co, regarding your proposed meeting. They have advised us to decline, for reasons that they will be writing to you on separately."
The next day Mr Cashman responded to Mr Billowes' email of the day before in the following terms:
"Just so that we can be clear who exactly is saying this conduct is 'wholly inappropriate'. When you say 'we' — is that just you Inces, or does the 'we' include your clients as well?"
On the next day, 24 October, Mr Gravendeel emailed Mr Billowes as follows:
"Please see below message from Carins [the producing brokers], of which the free translation is:
'Han, good morning. Our lawyer Jim Cashman asked me to inform you that he will call you today. It is expressly discussed that you are free to state/testify for us and that that will not harm your position.'
Are there changes in your position?"
To that he received a reply from Mr Billowes:
"Thanks for keeping us updated.
If Jim Cashman calls you please refer to previous correspondence and your instructions not to discuss the matter with him."
A little later on 24 October Mr Cashman emailed to the producing brokers:
"I refer to our conversation this morning — I have since spoken to Han.
Han has taken advice from local lawyers in Holland who have advised him not to do anything without the permission/authority of his principals — who he says are the hull underwriters.
He suggests I agree something with Inces. This is very very unlikely to happen. They clearly do not want him to go to London to give evidence.
I stress there is nothing as a matter of English law to stop Han speaking to us –just as there is nothing to stop Inces approaching our witnesses of fact and speaking to them. In fact they have already done this."
Later on 9 November Mr Gravendeel emailed Mr Billowes as follows:
"The broker has asked if I could testify in court once this becomes actual."
To which Mr Billowes replied on 13 November:
"As to the broker's question regarding you testifying in court, we may want to ask you to attend if there are any disputed issues that you can give evidence on. We will let you know nearer the time, but in the meantime would be grateful if you could not discuss any of the issues with the broker, the lawyer or the Owners."
Somewhat later still after intervening correspondence on disputed issues, on 3 January Mr Cashman emailed to Ince & Co as follows:
"Your instructions to Han Gravendeel not to talk to us/our clients or provide evidence to us/our clients amounts to a contempt of court."
He then referred to various authorities and said:
"It is of course trite law that there is no property in a witness, whether of fact or expert…
Kindly withdraw in writing (to us and to Han Gravendeel who reads us in copy) this wrongful attempt to prevent Han Gravendeel from talking to us, failing which we will apply for an injunction to stop this wrongful interference with a material witness of fact."
On 10 January, in a long letter dealing with this and other matters, Ince & Co referred to the history. In the course of their letter they said this:
"We asked you in our email of 22 October 2012 to address any questions of fact that you wished...
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