B e f o r e :
THE MASTER OF THE ROLLS
(Sir Thomas Bingham)
LORD JUSTICE STEYN
and
LORD JUSTICE ROSE
____________________
| |
AVRANGZEB KHAN |
|
| |
Plaintiff/Appellant |
|
| |
-v- |
|
| |
ARMAGUARD LIMITED |
|
| |
Defendant/Respondent |
|
____________________
(Computer Aided Transcription by John Larking,
Chancery House, Chancery Lane, London WC2.
Telephone No. 071 404 7464.
Official Shorthand Writers to the Court.)
____________________
MR. S. GRIME Q.C. and MR. P. ATHERTON (instructed by Messrs. Stephensons, Lancashire) appeared on behalf of the Plaintiff/Appellant.
MR. G. WINGATE-SAUL Q.C. and MR. D STOCKDALE (instructed by Keogh Ritson, Bolton) appeared on behalf of the Defendant/Respondent.
____________________
HTML VERSION OF JUDGMENT
____________________
Crown Copyright ©
LORD JUSTICE ROSE: The defendants appeal against an order of Mr. Justice Holland who on 12th February 1993 dismissed their appeal from a decision of District Judge Wilby on 14th September 1992. The Judge upheld the District Judge's refusal to make an order under Ord. 38 r. 5. The effect of the refusal is that the defendants have to disclose a video film of the plaintiff. The appeal is brought with the leave of this court.
The plaintiff claims damages against his employers for personal injuries sustained, in the course of his employment, in a road traffic accident on 9th October 1985. He was travelling as a passenger in a security van driven by a fellow employee. When leaving the M4 motorway at Junction 7 it turned over. It is not surprising that primary liability is admitted although there is a seat belt issue.
In his statement of claim served in January 1990 the plaintiff claims that his injuries are such the he will probably never work in a responsible job again; that he is effectively un-employable and as a consequence he is suffering very substantial loss of earnings and earning capacity.
He says he sustained, among other injuries, physical injury to the heart and head. Other injuries have caused blackouts, severe depression and psychological vulnerability. He says that his whole style of life has been dramatically changed. He has no substantial social life. He cannot play cricket. He has disclosed a number of medical reports, all of which are dated prior to the statement of claim.
The defendants have a number of medical reports dated, in one case, prior to the statement of claim, and in others subsequently to the statement of claim. They come from an orthopaedic surgeon, a cardiologist, a neurologist and a psychiatrist, all of whom say that the plaintiff is a malingerer.
The defendants have obtained a video film which they say is wholly inconsistent with the plaintiff's claims. It has not been viewed by this court, nor was it viewed by the District Judge, or the Judge. The defendant's case is that the plaintiff is an exaggerating malingerer.
Ord. 38 r. 5 provides as follows:
"Unless, at or before the trial, the Court for special reasons otherwise orders, no plan, photograph or model shall be receivable in evidence at the trial of an action unless at least 10 days before the commencement of the trial the parties, other than the party producing it, have been given an opportunity to inspect it and to agree to the admission thereof without further proof."
The defendants applied to the District Judge for an order dispensing with inspection and that application, as we have indicated, was dismissed. In a commendably brief judgment Mr. Justice Holland said that he could not fault the decision of the District Judge, but that he agreed with it entirely. The District Judge referred to the decision of this court in McGuiness v Kellogg Co of Great Britain Ltd [1988] 1 WLR 913 to which I shall return shortly.
The District Judge went on as follows:
"I am aware of the authorities on this point and particularly the oft-quoted case of McGuinness v Kellogg. The general principle set out in that case is apposite to the present application namely:-
'It was necessary to keep well in mind the principle that the interests of justice were best served by the early disclosure of all relevant material.'
This approach 'has to be modified' where there is an issue between the parties as to the bona fides of the Plaintiff's claim.
The question is - how far should 'this approach be modified' in late 1992?
In recent years there has been a rapid move from the adversarial 'cat and mouse' approach to litigation to a much more open 'cards on the table' way of conducting cases especially in personal injury claims. For example the exchange of witness statements is specifically stated in the White Book to be for the purpose of eliminating the element of surprise and avoiding an unnecessary trial."
I interpose that that is a passing reference to Ord 38 r 2A.
The District Judge went on:
"It seems to me that in most straightforward personal injury cases the disclosure of a video will promote an early and fair settlement of the case. The argument that if the plaintiff sees the film before the trial he will be able to 'trim' his evidence seems a weak one to me. These cases are always heard by experienced Judges who will be able to see straight through 'trimmed' evidence.
In reality the case is unlikely ever to get to trial if the video seriously undermines the plaintiff's credibility.
The other side of the coin is that the video may not be as damaging as claimed by the defendant, but the plaintiff becomes needlessly alarmed and agrees to settle the case for too low a figure. If the video is seen by the plaintiff and his legal advisers they can assess the situation with full knowledge of the case the plaintiff has to meet. Perhaps this is particularly important where the plaintiff is legally aided and his solicitors have a duty not only to their client but also to the Legal Aid Board.
This is the general approach I adopt in this type of application and I would need to be satisfied that on the special facts of a particular case, non-disclosure was in the interests of a fair trial. In the present case I was not so satisfied and made my order accordingly."
For the defendants Mr. Wingate-Saul Q.C. submits that the facts of the present case are indistinguishable from McGuinness. He does not suggest that there is any material difference between a video, as in this case, and a film which, in the case of McGuinness, was admitted to be a photograph within Ord. 38 r. 5. He accepts that in many cases a film or video should be made available for inspection because it does not justify an attack on the plaintiff's bona fides. Those are what he referred to as "grey" videos, that is to say they may show some aspects of activity which are somewhat contrary to the plaintiff's case, but which are not fundamentally contradictory of it. He submitted that, in a small number of cases where the plaintiff is shown to be inventing his symptoms, or deliberately exaggerating them, non-disclosure aids the interests of justice and the uncovering of deceit. In support of that submission he invited the court's attention to the McGuinness case.
The judgment of Lord Justice Neill in that case, with which the other two members of the court agreed, was one which dismissed an appeal by the plaintiff when the defendants, having applied for leave not to disclose a film of the plaintiff, were granted that application by the Registrar and the Judge confirmed that order.
The way in which Mr. Wingate-Saul puts the matter is that McGuinness shows that, if there is an attack on the bona fides of a plaintiff, an order against disclosure may appropriately be made. Mr. Wingate-Saul tells this court, and it is not a matter of dispute, that since the decision of this court in McGuinness there have been a number of unreported decisions at varying levels which have resulted in orders, such as were made by the District Judge in the present case, being made. Mr. Wingate-Saul submits that the decision in McGuinness was reached in recognition of the "cards on the table" approach to litigation which is now a familiar part of civil litigation in the Queen's Bench Division generally and not just in the Commercial Court.
He submits, furthermore, that the case of Naylor v Preston Area Health Authority [1987] 1 WLR 958, which was referred to in McGuinness, was also reached having regard to certain passages in the judgment of the then Master of the Rolls, Sir John Donaldson, in the light of the "cards on the table" approach to litigation.
The approach which Mr. Wingate-Saul commends to this court is that McGuinness has not properly been understood by the legal profession. One consequence of the present appeal, he submits, should be to reaffirm that which McGuinness decided. Justice between the parties, he submits, will be improved by non-disclosure in a case such as the present because non-disclosure will enable fraudulent claims to be fully exposed by obtaining a commitment by the plaintiff under oath to a particular stance which is then capable of being demonstrated to be false by the contents of a video film. He cited, as an example, cross-examining a plaintiff carefully so as to obtain from him a statement that he had never played cricket since the accident occurred, the defendants being in possession of a video film which showed him engaged in that sporting activity since the accident. So far as that matter is concerned it has to be borne in mind, as Mr. Grime Q.C. for the plaintiff reminded the court, that interrogatories can now be administered without leave on one occasion by each party and suitable admissions are, it might be thought, capable of being elicited by way of interrogatories.
The court's attention was drawn by Mr. Wingate-Saul to an unreported decision of this court in Digby v Essex County Council on 8th June 1993. In order the better to understand the context of that case it is convenient to refer to the judgment of my Lord, Sir Thomas Bingham, Master of the Rolls. At page 7 G my Lord, when referring to McGuinness and Kellogg , said this:
"It is to be emphasised that where exceptional circumstances exist, the Court has a discretion to exercise. It is not obliged to sanction the withholding of a document from disclosure where there is a serious allegation as to the plaintiff's bona fides, but the Court can exercise its discretion in that way."
At page 9 E my Lord said this in reference to the submission of counsel for the defendants:
"He argues that once there is a finding that there are suspicions of malingering, and once the risk is acknowledged that the plaintiff may trim his evidence, then that points towards and only towards an exercise of discretion against ordering disclosure. To my mind that is to impose an unnecessary and undesirably restrictive straight-jacket on what is meant to be an exercise of discretion.
One starts from the position which [counsel] acknowledges, that the Courts favour disclosure. There are a host of reasons, which need not be recited in the course of this judgment, why it is desirable that parties should go to Court knowing what case they have to meet. Apart from anything else, it avoids the risk of adjournment and the risk that a party will feel that if he had known the case he had to meet he could have called evidence which, in the result, he was not able to call.
The policy, therefore, is strongly in favour of disclosure, and a convincing case needs to be made before it can be right to relieve a party of that obligation.
The authorities make it plain that if there is a clear and unequivocal challenge to the bona fides of the plaintiff, and in particular if it is plainly alleged that he is malingering or grossly exaggerating his symptoms, that is a ground upon which the Court may" -- and I stress the word
may -- "indeed may even be likely to exercise its discretion against disclosure. But that is the threshold."
A little later my Lord said at letter G:
"It appears to me that the defendant is seeking, for reasons of no doubt genuine forensic advantage, as it sees it, to confront the plaintiff with this film without committing itself, very plainly in advance, to what its message is. The doctors, as I say, are equivocal. We are given.....no clear lead as to what the film itself would lead us to conclude."
My Lord went on to conclude that there was no improper exercise of discretion by the Assistant Recorder in that case.
Simon Brown LJ said at 11 C:
"Over recent years there has been increasing recognition of the benefits of making the fullest disclosure before trial; disclosure not merely of the issues raised but of the evidence. That is true equally of the Court's civil jurisdiction as of its criminal jurisdiction. It is exemplified by the relevant, recently introduced leave for the automatic exchange of witness statements.
Turning to the present case, it is well recognised that the great majority of personal injury cases settle. That of itself is highly desirable and it must be in the public interest to encourage such an approach. The problems of acceding to a defendant's application to withhold material such as the video recording here are obvious. Such an Order must inevitably give the defendant a powerful negotiation advantage. The plaintiff's advisors will be unable to value his case properly and confidently and advise him fully upon the advantages of settlement and the risks of litigation, fearful as they would always be that there was some skeleton in their client's cupboard, more troubling than he, for his part, was prepared to recognise.
That is one of the countervailing considerations in favour of a policy of general disclosure. But in my judgment, even with regard to those personal injury claims, public policy generally commands a practice of cards on the table."
At 12 F Simon Brown LJ concluded:
"Save, therefore, in cases where malingering is clearly and categorically advanced as the basis for a non-disclosure order and where there can be demonstrated a plain risk of a plaintiff doctoring his evidence, that risk sufficiently outweighs the countervailing consideration which I have sought, at least in part to indicate in my judgment, that there should be only the rarest orders permitting non-disclosure."
Mr. Wingate-Saul also referred the court to a decision of this court in Mercer v Chief Constable of Lancashire [1991] 1 WLR 367. That was an appeal from my Lord, Steyn J, as he then was. In the course of giving judgment he had referred, in a passage cited with approval in the Court of Appeal by Lord Donaldson of Lymington, Master of the Rolls, at page 372, to the practice of the Commercial Court in fraud cases. He said this just below H:
"But fraud cases are now commonplace in the Commercial Court, and it is now common practice to order such an exchange, even in fraud cases. It is noteworthy that the recently published Commercial Court Guide contains no restriction in respect of fraud cases as a class of business, and it explicitly recognises that the fact that credibility is in issue, is no good reason why such an order should be made. But I accept, of course, that there may be good reasons in a particular fraud case not to order an exchange."
As I have indicated, Lord Donaldson expressed his complete agreement with the Judge in that passage.
Mr. Wingate-Saul submitted that the principal consideration in determining whether there should be a non- disclosure order should be the bringing about of a fair resolution of the issues at trial. I, for my part, have some hesitation in accepting that submission in the form which is expressed, first because it ignores the fact that a very high proportion of personal injury cases settle before they ever reach trial; secondly, if cases are disposed of before trial a considerable attendant saving of costs necessarily results.
On behalf of the plaintiff Mr. Grime drew attention to the history of Ord 38 r 5 and its emergence from the report of the Evershed Committee which indicates clearly, at paragraph 287 and following, that the Committee were seeking to save costs by avoiding the need to have photographers and plan-makers at court. Mr. Grime submits that it was not until the 1980's that Ord 38 r 5 came to be regarded as applicable to a case such as the present because it was not until then that enquiry agents had the ability, as a consequence of the development of video cameras, to make recordings such as are material in the present case.
Mr. Wingate-Saul also drew attention to the terms of the Civil Justice Review in 1988 which proposed a requirement for the exchange of non-expert witness statements, but that that should not apply in cases where fraud was pleaded. As he correctly points out, fraud was not an aspect which featured in Ord. 38 r. 2A when that rule came to be implemented.
Mr. Grime advanced three propositions of principle and three of practice. First, that it is generally unsatisfactory if an enquiry agent's film is not disclosed, but his statement is. Secondly, that exacting money by lying is fraud. Thirdly, that pre-trial disclosure should be the general governing principle and is recognised by the rules as being the general principle. Fourthly, that the decision of this court in McGuinness is not working in practical terms because it is being regularly ignored. Fifthly, in any event there is no effective judicial filter on the making of an application under order Ord 38 r 5 because neither the District Judge, nor the Judge on appeal, nor indeed this court, is likely to see the film. Sixthly, Mr. Wingate-Saul concedes that disclosure of a "grey" film may well be appropriate even though, in such a case, the plaintiff may well be able to trim his evidence.
The factors in favour of disclosure which Mr. Grime advances are these. It is likely to encourage realistic assessment of the case by those advising the plaintiff and will sometimes, in consequence, lead either to legal aid being withdrawn or, in the case of a non-legally aided plaintiff, to a more acute realisation of the difficulties presented. The trial is likely to be shortened, if indeed the case goes to trial. A judge will have the opportunity of looking at the film before trial as part of his pre-reading activity. Expert assessment and comment, in particular from doctors, will be capable of being obtained without, as frequently happens in the case of non-disclosure, the course of the trial being interrupted by a multitude of adjournments while the plaintiff, his legal advisers and his doctors consider the contents of the video film. Mr. Grime submits that it is fairer to the plaintiff that he should have the opportunity of considering in advance the contents of such a film because he may have good days as well as bad days, and if he does not know what is in the film he may succumb to undue and unfair pressure to under-settle the case because of the fear of the unknown. He submits that the opportunity to see a film in advance would also give the opportunity to call explanatory evidence from other witnesses without the need for adjournments to procure their attendance which may be necessitated by disclosure during the course of the trial.
Mr. Grime was invited to consider, if his submissions were right, what would be left of the discretion under
Ord. 38 r. 5? He advanced two matters. First, that there are many instances in which the White Book preserves a residual discretion in a wide ranging variety of cases, and this may be merely a reflection of the rule-making body's reticence in laying down an absolute rule. Secondly, he emphasised that Ord. 38 r. 5 is not limited to personal injury actions. He accepted, at the suggestion of the court, that there may be situations in which a video film is either in the hand of a third party or for some reason does not come to light until less than ten days before trial, which would be within the ambit of Ord. 38 r. 5 even if his submissions were accepted.
In my judgment there have been three changes since McGuinness was decided by this Court which are material to the present appeal. Two are changes in the law, one in practice. First, there has been a change in the rules so that an exchange of witness statements in Queen's Bench actions becomes the norm since 1st October 1989 by virtue of Statutory Instrument 1988 number 1340. Secondly, there has been a change in the rules by virtue of Statutory Instrument 1992 number 1907, whereby since 16th November 1992 automatic discovery has been provided for in personal injury cases unless there is a contrary direction by virtue of Ord 25 r 8(3). Thirdly, the practice of "cards on the table" has developed very considerably in the Queen's Bench Division. That was a practice which, as is apparent, the District Judge in the present case plainly recognised. It is right to say, as Mr. Wingate-Saul does, that McGuinness was decided in the context of a developing "cards on the table" practice. But that, in my view, is only a partial answer, having regard to the two changes in the rules to which I have referred and to the further and continuing development of the "cards on the table" practice. In my judgment there is no reason shown in the present case why the Judge's discretion was wrongly exercised or why the District Judge's discretion was wrongly exercised. The "cards on the table" approach which now operates in my view requires that it should be very rare indeed in a personal injury case for an order for non-disclosure of a video film to be made. That in my judgment is an approach which is consistent with the tenor of the judgments of My Lord, the Master of the Rolls, and Simon Brown LJ, in the Digby case. It is, as it seems to me, in the interests of the parties, the legal aid fund, and the efficient dispatch of business by the courts, that cases should be disposed of by settlement at an early stage. Almost always, in my view, this should mean that disclosure of video films of the kind presently under consideration should be made, even in cases where the defendant's case is that the plaintiff is a malingerer.
It seems to me that the fundamental point at which
Mr. Wingate-Saul's argument breaks down is this. He submits that it is only in cases where there is clear film evidence to support malingering and lack of bona fides that disclosure should not take place: but it is in precisely those cases that the possibility of the plaintiff trimming his evidence is most remote.
Accordingly, for my part, I would dismiss this appeal. LORD JUSTICE STEYN: I agree.
THE MASTER OF THE ROLLS: I also agree.
Order: Appeal dismissed with costs. Order for legal aid taxation of the plaintiff's costs.
