England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE FC3 98/6739/3

COURT OF APPEAL (CIVIL DIVISION )

Royal Courts of Justice

Strand

London WC2

Monday, 28th September 1998

B e f o r e :

LORD JUSTICE SWINTON THOMAS

LORD JUSTICE OTTON

LORD JUSTICE WALLER

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GIO PERSONAL INVESTMENT SERVICES LIMITED (Formerly GIO Life Ltd)

Plaintiff

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LIVERPOOL & LONDON STEAMSHIP

PROTECTION AND INDEMNITY ASSOCIATION LIMITED

AND OTHERS

Defendant

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(Computer Aided Transcript of the Stenograph Notes of Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Telephone No: 0171-421 4040

Fax No: 0171-831 8838

Official Shorthand Writers to the Court)

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MISS H. DAVIES (instructed by Messrs Barlow Lyde & Gilbert, London, EC3) appeared on behalf of the Applicant OMM.

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J U D G M E N T

( As approved by the Court )

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Crown Copyright

LORD JUSTICE WALLER: At the commencement of this judgment, I would like to record the vigorous protests we made at the commencement of this hearing. It is outrageous the way the correspondence has blossomed in this case relating to a short point, and it is outrageous how this court has been treated in the way the correspondence has been put before it. On Friday afternoon we were asked to insert into our bundles the totality of all the correspondence that had taken place in relation to this application, both between the solicitors and the Court Office, a mass of it duplicated more than once, and about two or three letters of any relevance to what we had to decide. It appears to have happened because no one as between the solicitors was able to speak sensibly on the telephone and agree matters. It appears that faxes swiftly winged back and forth and thus the correspondence proliferated. Presumably that is going to be all at the expense of a client. Why we should be burdened with that vast number is inexplicable and an absolute negation of solicitors' duty to the court. As I put to Miss Davies, who has had to face this barrage alone, if a bundle of this type had been put before a senior partner in either of these firms who have been exchanging this correspondence, he would have been outraged, I hope, at the correspondence ever coming into existence and certainly outraged that he was asked to glance through it in order to try and find out the issues. Miss Davies has had the misfortune to be alone here. Indeed, it is right that only one firm of solicitors is here. I suspect that the other firm of solicitors are just as responsible. One of the reasons that I record this in this judgment is that they should know, as clearly as the firm here in court, the attitude of the court to what has happened.

This is a short application for leave to be present at an appeal from the decision of Timothy Walker J due to be heard in the near future, the beginning of October. The appeal raises a point of some importance but is an appeal which will be able to be conducted with the minimum of documentation and quite shortly. The point in a nutshell will be what the attitude of the court should be to making available documents to a non-party who has attended court during the trial. The document referred to is in particular the skeleton arguments, and correspondence which might under former procedures have been read out in open court, but which in order to save time have been read by the judge in the privacy of his room. The non-party in this case was FIA who applied to the judge for disclosure of those documents. They were not a party to the litigation before Timothy Walker J. They were, however, present through solicitors and counsel in the court below.

OMM, who are the applicant before this court and represented here by Miss Davies, are another non-party. They sought to appear before Timothy Walker J to argue against the making of any order for disclosure or, in the alternative, for an order that, if disclosure was ordered in favour of FIA, that an order should also be made in their favour. Their attitude was dictated by the fact that FIA wish to obtain the documents, the skeleton arguments etc, in order to assist their case against OMM in separate litigation.

At the hearing before Timothy Walker J a party to the litigation before him actually argued against having to make the documents, the skeletons etc, available. That argument was successful. In the result, Miss Davies, who was representing OMM, did not have to persuade the judge as to OMM's locus standi, nor was it explored. Furthermore, apart from confirming that its primary position was to oppose the disclosure of documents, nothing more was heard on behalf of OMM. FIA have appealed the ruling of Timothy Walker J. OMM now seek to be made parties to the appeal. FIA, through a letter from their solicitors, resist OMM being present at the appeal on the grounds that another party was likely, as happened below, to resist the appeal. The difficulty is that OMM cannot be absolutely sure that another party will argue the points required to be addressed. Furthermore, OMM wish to have an order in their favour if the appeal were by any chance allowed. Miss Davies has referred us to Hasselblad (GB) Limited v Kenneth Orbinson , [1984] 3 CMLR 540, a decision of this court. That decision demonstrates the wide jurisdiction conferred by O.59,r.8 which provides that:

"The Court of Appeal may in any case direct that the notice of appeal be served on any party to the proceedings in the court below on whom it has not been served, or on any person not party to those proceedings."

It seems to me clear that OMM should be allowed to be present. I would allow their application. Subject again to counsel having submissions to make in relation to directions, I would direct that the notice of appeal be served on OMM, that the skeleton arguments be served on OMM, that a bundle be served on OMM as soon as possible, and I would further direct that OMM should serve a skeleton argument, indicating those points which OMM desire to take. That also should be served as soon as possible.

LORD JUSTICE OTTON: I agree.

LORD JUSTICE SWINTON THOMAS: I also agree.

Order: Application allowed; costs reserved to the hearing; skeleton to be served by 4 p.m. Wednesday, 30th September.