England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRADFORD COUNTY COURT
(His Honour Judge Hawkesworth QC)

		Royal Courts of Justice Strand London WC2 Thursday, 25th January 2001

1. LORD JUSTICE MANCE: The claimant claims against solicitors who acted, and counsel who drafted his claim, in previous proceedings against another driver, Miss Hardacre, with whom he was involved in a road traffic accident. He claims that those previous solicitors and counsel who drafted the claim were negligent. The former proceedings against Miss Hardacre were settled for £85,000. Trial counsel was not the counsel who drafted the claim but was a Mr. Timothy Hirst. He conducted the settlement. He is not presently sued in these proceedings. There is some reason to think that that is because his initials happen to be the same as the initials of the second defendant, a Mr. Timothy Hartley, and it was not appreciated from the somewhat illegible scrawl on the brief that they were different people. The solicitor for the claimant presenting the matter before the judge below, His Honour Judge Hawkesworth QC on 21st November 2000, said:

"Had we known Mr Hirst was in at the beginning, there may well have been three defendants here today..."

2. It is said that the settlement of £85,000 undervalued the claimant's loss. The reason alleged is that no claim for loss of future earnings was pleaded by Mr Timothy Hartley. Both Mr. Hartley and the first defendants, Shaw & Ashton, the solicitors, say that, although that was and is the case (there was no such pleading), it was and is irrelevant. They say that such a claim was obvious on the facts put before the court in the witness statements and the pleading and was in fact taken into account on both sides in the settlement reached, although there was no pleaded claim.
3. The claimant now wishes to take the evidence of Mr Hirst on deposition. This is not because of any doubt or problem about Mr Hirst's availability at the trial. It is because Mr Hirst has been, on the face of it, reluctant to become engaged in any sort of dialogue about the case. The claimant does not know what he would say. The claimant says, however, that it is urgent that he should know, that it may shed much light on the strength of his case against the present defendants. As counsel before us has said, this is a way of seeing whether the trial should take place. Counsel seemed to disclaim any alternative motive but it seems to me that one underlying purpose (it may only be a subsidiary one) must be that it may also shed light on whether there is any need to involve Mr Hirst. If one looks at the grounds on which this matter has been put before us by the appellants' notice dated 5th December 2000, it contains this statement:

"If his evidence will be that he (Mr Hirst) was unfettered by the deficiencies in the preparation, that might defeat the claimant's present case and raise a prima facie case against Mr Hirst himself."

4. Similarly, the statement which I read from the transcript made by the solicitors presenting the matter to the judge below points in that same direction.
5. The basis of the application in these circumstances is CPR 34.8, which provides:

"A party may apply for an order for a person to be examined before the hearing takes place."

6. Then by paragraph (3):

"An order under this rule shall be for a deponent to be examined on oath before -

(a) a judge;

(b) an examiner of the court; or

(c) such other person as the court appoints.

(4) The order may require the production of any document which the court considers is necessary for the purposes of the examination."

7. Examination, by CPR 34.9, is conducted in the same way as if the witness was giving evidence at a trial. The evidence is recorded in full and distributed to the court and the parties. By CPR 34.11:

"(1) A deposition ordered under rule 34.8 may be given in evidence at a hearing unless the court orders otherwise.

(2) A party intending to put in evidence a deposition at a hearing must serve notice of his intention to do so on every other party.

(3) He must serve the notice at least 21 days before the day fixed for the hearing.

(4) The court may require a deponent to attend the hearing and give evidence orally.

(5) Where a deposition is given in evidence at trial, it shall be treated as if it were a witness statement for the purposes of rule 32.13 (availability of witness statements for inspection.)"

8. We have also been referred to statements in procedural guides as to the scope of this rule and as to the likelihood that the procedure of taking depositions in advance of the trial will have an increased application following the introduction of the CPR. In Butterworths Civil Court Practice it is said that:

"Generally the court will make such an order where (1) it will be inconvenient to the deponent for him to attend to give evidence on the date fixed for the hearing and/or (2) the interests of justice require that the evidence to be given by the deponent be available prior to the hearing taking place; for example, the witness in question has refused to give any witness statement and without such statement the party who wishes him to be examined is unable either to make or to resist an application by or against him."

9. Then in Jordans Civil Court Practice it is said:

"In the past such orders were usually made where the witness is too ill or otherwise unable to travel or attend the trial. As stated above, it is anticipated that use of the deposition procedure will increase and should be permitted or indeed ordered by the court under its case management powers whenever such an order would further the overriding objectives."

10. What is urged upon us today by Mr. Butler is in essence that it would further the overriding objectives to know whether this action has good prospects or should be further pursued, and that Mr. Hirst should be deposed accordingly. The judge did not accede to that. He dismissed the application. His judgment is short. It reads:

" . . . I am going to refuse that application. The reason is simply this, that it seems to me that Mr Hirst must be the central character in the whole settlement of this claim at the court, being the barrister who represented the claimant. It is inconceivable, it seems to me, that Mr Hirst is going to give such answers were he to be examined beforehand, which would place the claimant in really no better position than he is at present, and therefore it is not in the interests of justice it seems to me to require that he be examined beforehand. The claimant is perfectly able to make a case that the settlement viewed objectively, whether or not it is correctly pleaded, was one which was inadequate for someone who had suffered his injuries and suffered his loss of employability. Whether Mr Hirst will agree with the way it was pleaded or whether he will not, it does not seem to me to make any material difference in the way that the claim should be advanced, or can be advanced by the claimant. It seems to me that if Mr Hirst's position is to be examined during the course of this trial, it will either have to be in the context of him being called on behalf of Mr Hartley, if he so wishes, or in the context of him being made a defendant, but that is not a matter upon which I can speculate, it is for the parties to take the appropriate steps."

11. The transcript of the preceding argument and interchanges helps, I think, understand more fully the way in which the judge was thinking. He identified a number of factors: (a) the claimant's acknowledged ability to pursue his former advisers on the basis on which they have always been pursued, namely that £85,000 objectively undervalued the claimant's loss; (b) the unreality that Mr Hirst would say anything other than that he was able to settle at the right figure despite the pleading without seeking an adjournment to re-amend. One might add that that is particularly so, it seems to me, in the light of the fact that it is the common case made by the present defendants. One might also further add that it would not be open to the claimant, on calling him on deposition, to cross-examine Mr Hirst, and if, somewhat inexplicably to my mind, Mr Hirst admitted, directly or indirectly, something which might be viewed as negligent, the effect would be to leave, as has been acknowledged, a prima facie case against him, and one which one would have thought was likely to be pursued. In other words, one result which might be regarded as rather remarkable, is that the claimant would be able to discover whether there may be grounds for suing Mr. Hirst. The third factor which the judge identified in the course of the argument was this: the absence of any suggestion on the claimant's side that any advice was received from Mr Hirst on the subject. Mr. Hirst was obviously with the claimant at the trial. One would have thought that there might have been some evidence from the claimant as to what took place by way of interchange between them. The fourth factor is the purpose of examining Mr Hirst, namely to see whether there was a case against the first defendant and Mr Hirst, and the final factor was the nature of any evidence which could be obtained from Mr Hirst on deposition, namely evidence in transcript form, with the result that, unless Mr Hirst was recalled and re-examined at the trial, the trial judge would not even have the opportunity of seeing him, and if he was recalled and re-examined, then he would end up giving evidence twice, or at least be in the unusual position where he had already given a prior deposition which could be used to examine or cross-examine him when he came to give evidence at the trial.
12. In response to that final point Mr Butler referred us to the rule which I have read, CPR 34.11(4), whereby the court may require the deponent to attend the hearing to give evidence orally. However, it seems to me that that is not a primary procedure. It is a fallback procedure when evidence is obtained on deposition before a trial because it is thought that it must be obtained in that way or can appropriately be obtained in that way in order to be adduced at the trial, but later it seems preferable that the trial judge should hear at least some of the evidence orally.
13. It seems to me that all of the considerations identified by the judge were relevant. I do not consider that the primary purpose of CPR 34.8 was in any way to enable the sort of procedural course now suggested. The primary purpose is and remains the taking of evidence on deposition and introducing it in that form at the trial from a witness whom it would be impossible to bring to court for trial. I am prepared to accept the alternative suggested in Butterworths Civil Court Practice; that is, of enabling a party who could not pursue his case without a particular witness's support to obtain evidence from that witness in advance. I gave an example in the course of argument which seems to me to illustrate that situation. If a party wishes to pursue an application for summary judgment under CPR 24 or to resist it, and he could not adduce the necessary evidence for that purpose without having the evidence taken on deposition of some witness, then that would be a classic example. However, in the present case the claimant not only can pursue his claim, but has pursued his claim, against the present defendants. What he wants is to obtain the evidence of a witness in advance simply in order to enable him to re-evaluate the strength of his claim against the present defendants to see whether a trial should now take place. Further, if he concludes that he has only a poor prospect against them alone, there is the subsidiary purpose of wanting to know whether he has a prima facie case against Mr Hirst. It does not seem to me that CPR 34.8 is there to enable a potential claimant to have a potential defendant examined in advance to see what he has to say. The suggested procedure would, as the defendants submitted below, lead to an odd position. The evidence would have been given on deposition and then, if it went a certain way, either it would never be used at the trial at all, so that the deposition would not have served its primary purpose, or, if there was a trial, it would be one where Mr. Hirst would be a witness in the peculiar position of being called again, (because counsel has avowed that that is the primary intention), in which case his entire deposition would be there to enable him to be cross-examined. That peculiarity is heightened by the consideration that by that stage he might well have been joined as a third defendant.
14. It seems to me right to add this to the considerations which the judge identified. Although, as the judge said, it may be viewed as unfortunate that Mr Hirst was not collaborating with the claimant, the remedy is not to seek to adapt the deposition procedure to cater for that problem. The reason why it is unfortunate is that he is a former attorney or agent for the claimant, and in ordinary circumstances one would regard such a person who has conducted proceedings for a claimant as under some obligation, if only a professional obligation, to explain what happened. That, in relation to a barrister, is an obligation which one can readily conceive could be drawn to the attention of other professional authorities who might feel minded to remind the barrister of it, and one can have little doubt that that could well have led to the claimant achieving his aim of gathering further information but in a more conventional manner. It does not appear that that procedure has ever occurred to the claimant or his advisers. I say no more about it or whether it would be one which could be pursued. It seems to me that, on the face of it, it is one which one would have expected to have been attempted. I consider that the judge was entirely right in the exercise of his discretion. It was not only an exercise which lay within the bounds of his discretion but was an exercise of discretion to which I would have come. This was an unusual application. It was one which does not seem to me to fall within what one might regard as the general purposes of CPR 34, and I consider that this renewed application should therefore be dismissed.
15. I add only in relation to the written reasons that I gave, when considering this matter on paper, most of which I have reflected here, that there is no general right in a party to obtain documentation or information from a third party, either pre-claim or pre-trial. Even against a person likely to be sued, the only right is to seek disclosure of relevant documents under section 33 of the Supreme Court Act 1981. It seems to me that that is a consideration which reinforces the judge's exercise of discretion.
16. LORD JUSTICE JUDGE: I agree with the reasons that my Lord has given for dismissing this application. I shall add these short comments of my own. Like him, I very much doubt whether the provisions of CPR 34.8 are normally intended to extend to a claimant seeking an order against a potential defendant before proceedings have been started against that potential defendant. In any event, however, this decision was a matter for the discretion of the judge. I agree with the way in which the judge exercised his discretion and certainly can find no basis for interfering with it. In view of Mr. Butler's clear submissions, I should add that, in my judgment, the criticisms of the exercise of the judge's discretion, based on his omission to make express reference to the overriding objectives of the civil justice reform, or his failure to recite the possible consequences of his order in the course of his judgment, are misplaced. In my view, it is normally to be assumed that these considerations would have informed any judge's decision in a matter of this kind. The fact that no express reference was made in the judgment to them provides no basis for inferring that he overlooked or failed to give them proper attention and weight in the overall analysis of the issues which arose for decision.
17. Finally, I should add that, if the claimant decides to take up with the Professional Conduct Committee of the Bar the absence of any response from former counsel, it is for that Committee to make whatever decision is right in the light of the Profession's Standing Rules and after having made whatever investigation seems appropriate to them. It therefore follows that, because of potential difficulties with limitation periods, the claimant's present legal advisers should be alert to the possibility that more time may elapse by taking the issue up with the Bar Council than is available to them.
Order: Application refused.