IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
COMMERCIAL COURT
(Michael Brindle QC - sitting as a Deputy High Court Judge)
Strand London WC2A 2LL Friday, 28th September 2001 |
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B e f o r e :
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(1) HERBERT BLACK | ||
(2) AMERICAN IRON & METAL COMPANY INC | ||
(Original Applicants (Intended Claimants/Respondents to this Appeal) | ||
-v- | ||
(1) SUMITOMO CORPORATION | ||
(2) SUMITOMO CORPORATION (UK) PLC | ||
(3) SUMITOMO CORPORATION OF AMERICA | ||
(Original Respondents (Intended Defendants)/Appellants |
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Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0170 421 4040
Official Shorthand Writers to the Court)
MR GEOFFREY VOS QC and ANDREW TWIGGER (Instructed by Teacher Stern Selby, 37-41 Bedford Row, London, WC1R 4JH) appeared on behalf of the Respondent.
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Crown Copyright ©
Friday, 28th September 2001
1. LORD JUSTICE WALLER: On 26th July 2001 Mr Michael Brindle QC, sitting as a Deputy High Court Judge, ordered Sumitomo to give pre-action discovery under Civil Procedure Rule 31.16 and he gave two and a half months until 12th October for completion of that exercise. He refused permission to appeal but he granted until 23rd August, time for the appellants to apply for permission. He also at that stage refused an application for a stay, stating that it would only be appropriate if permission to appeal was granted.
2. Sumitomo applied for permission to appeal at speed. In their application they said that they wanted the application for permission to be treated with expedition. It does seem as though the administration part of the Court of Appeal construed that as an application to expedite the appeal itself; and thus it was that on the heading of the document that went before Brooke LJ the application is described as "permission to appeal, expedition and stay".
3. When Brooke LJ granted permission he simply said, "Granted", and then also said that there should be a stay. I have to say, I do not myself think that in saying, "Granted", he was granting expedition for the appeal, particularly because there is a box which deals with expedition and he didn't mark that box as if expedition was being granted. But there is, equally, no doubt that the administration thought that expedition was being ordered; and indeed the respondents thought expedition was being ordered.
4. In fact what happened was that, at first, a standard letter went out from the Court of Appeal giving a window for this appeal, as it would have been if there was no expedition, 23rd February to 23rd April. But thereafter, on 21st September, the respondents said that the appeal had been expedited and that both sides wanted the matter heard quickly. When that letter got to the Civil Appeals Office it seems that, independently, the Court of Appeal Office thought expedition had been ordered, as they sent a letter saying that the case was floating for 3rd/4th October this year. Perhaps unsurprisingly, the solicitors for the appellant, Ashurst Morris Crisp, were taken by surprise by that letter from the Court of Appeal. What is more, they had not actually supported the letter from the respondents. Ashurst Morris Crisp were faced with the difficulty, or their clients were faced with the difficulty, that Miss Gloster, who had appeared in the court below, was not available on 3rd October and was troubled as to whether she might not be available on 4th October. She has a fixture. It is fixed for a day. But her clients are concerned as to whether the case might not run over. So it is that they applied to the court to have that date vacated and to go back to the window.
5. That application is resisted by the respondents, for whom Mr Vos appears, on the ground that if the matter only came on in February to April and if the appellants wanted two and a half months to complete the exercise, then the whole appeal might be rendered futile because the respondents would have to start their action, if they were going to start their action against Sumitomo, prior to June next year because there is a limitation problem. When arguing the matter today, Mr Vos has also made clear that in fact he has personal difficulties next term, either in the window which has been offered.
6. So far as limitation is concerned, at first blush there appears to have been considerable delay on the part of Mr Vos's client in considering this claim, because the circumstances which are said to give rise to the claim occurred in June to October 1996 and they did not write to Sumitomo until December 2000. But Mr Vos has explained, and I do not think there is any contest on this, that the information which enabled them to consider the claim insofar as they have done so, did not get into their hands until the Freedom of Information Act in the United States made it available some time during the year 2000. So there is some excuse for that initial delay. Also so far as limitation is concerned, it is right to put into the balance that when Sumitomo were approached and asked originally to provide documents, they were not very speedy in responding. In any event, the plain fact is that some limitation point may crop up next year.
7. Certain of these points can be dealt with. Sumitomo have offered a stand still agreement. But in answer to that Mr Vos has said there are others: they may want to sue Goldman Sachs, for example, where no stand still agreement can be obtained. The two and a half months to produce the documents can be dealt with because the exercise of getting hold of the documents can continue in the meanwhile, of course, at quite substantial expense and with considerable use of time so far as the employees of Sumitomo are concerned. Miss Gloster has offered seven days as the time from the determination of the appeal for the provision of the documents, if the appeal succeeds. She submits however that Mr Vos's clients would have to pay all the costs incurred in the meantime.
8. In essence this matter got off on the wrong basis because of the original misunderstanding about whether or not expedition was ordered. I do thus not intend to start from the premise that there is an order for expedition and that it is to be, as it were, dislodged by Sumitomo, Miss Gloster's clients. I view this as in reality an application which would be likely to have been made jointly by these parties, because both really want this appeal to be determined at the earliest possible date. In one sense, whoever is going to pay, the expense of having this exercise conducted if it is unnecessary should be avoided. Equally, it is certainly a very complicated claim, and, if these documents are going to be produced, the sooner they are produced the better and the sooner that the claimants can consider whether they can bring an action or whether they can't the better. As Miss Gloster herself very fairly accepted, if one was starting afresh, both sides would like the decision on this appeal sooner rather than later. The plain fact is that, unfortunately, this court could not expedite this appeal in the sense of saying other cases must be pushed out of the list in order to put this case in. But it can offer the 3rd/4th October, which at present is the date which has been set aside for this appeal.
9. It seems clear, or reasonably clear to me, that with good-will on both sides the matter can be argued in a day. It furthermore seems to me that it is one of those cases where the skeleton arguments are going to be key and important. It furthermore seems to me that there is a strong possibility that Miss Gloster will actually be here. I do, however, accept that Sumitomo are bound to insure themselves against the possibility of her not being here. If the case is put in for 4th October they are bound to instruct other leading counsel. It is not suggested that other leading counsel could not get up the appeal in the time available.
10. Taking decisions of this sort is always difficult. One never probably has the right answer. But doing the best I can, I have come to the view that the overwhelming point is that the sooner this appeal is disposed of the better; and I do not think that Sumitomo are going to be handicapped by having a back-up to Miss Gloster if the date 4th October were kept. Thus, as it seems to me, and I stress that I am starting afresh, not from the position that some order was made without consulting people and matters of that sort but taking a fresh view of it, that the right course is for this appeal to be disposed of on 4th October.
11. [Addendum: After giving judgment listing said that if the case were to be fixed, 3rd October would have to be the date although they could make efforts to more other cases to achieve 4th October. I ruled that listing should do their best, but if the date had to be 3rd October then that date should me maintained with Sumitomo being represented by counsel in place of Miss Gloster.]