England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (COMMERCIAL COURT)
(MR JUSTICE CRESSWELL)

		Royal Courts of Justice Strand London WC2 Thursday 21 February 2002

1. LORD JUSTICE WALLER: We have before us an application by LMCS and Equitas to intervene in order to obtain orders to protect the confidentiality of documents which may be used on the appeal to be heard in March. Confidentiality orders have been made during Lloyd's litigation generally in many proceedings. They were made in this case by the judge below, Cresswell J. On the whole, they were made with the consent of all parties.
2. One order, made in June 2000, was made to enable Equitas to provide certain information on the basis that enabled that information to be kept confidential. An attempt was made to appeal that order by Sir William Jaffray and, for reasons given in the judgment of the Master of the Rolls, permission was refused.
3. The object of the confidentiality orders is to seek to maintain, as far as possible, the privilege which certain documents have in litigation which may occur between the persons claiming to be injured and their employers or insurers; and to seek to maintain the confidentiality of claims statistics and claims information which are kept by Equitas which would be damaging to the interests of Equitas and all those involved in this litigation. The object is to find a way in which the documents can be used in this appeal, as between the parties thereto, without damaging the claim to Attorney privilege or the claim to confidentiality. The position is obviously most stark in this court because appeal bundles have been prepared, they are readily identifiable and it is in that context that this matter once again needs consideration.
4. Sir William Jaffray and Mr Carter have resisted the making of orders. They are anxious about any disadvantage they may suffer on the appeal if the orders were made. Sir William Jaffray has indicated that, in his submission, there has been a failure to give discovery of the AWP correspondence, the AWP board minutes and matters of that nature. He has used that submission as a basis for resisting the order. Mr Butler has raised, as described by Mr Edelman, a drafting point, but that point would have been a point to be made in relation to the order when it was first made in the court below. It is understandable how he was anxious about the possibility that there might be a distinction between unrepresented Names and other Names, but there is no difference between the terms of his orders made below and those now sought.
5. So far as the discovery position is concerned, as I sought to make clear to Sir William, discovery takes place prior to a trial and can take place during a trial. There are rules and procedures laid down for making applications for discovery and, if necessary, appealing orders to the Court of Appeal if there is dissatisfaction with the discovery process. Thus, it is going to be extremely difficult for Sir William, or any of the Names, now to suggest that further discovery should take place. Furthermore, discovery is not the subject of any application that is before us. The question is whether these orders should be made.
6. It seems to me, and I understand my Lord to agree, that it is important that these orders are made, but it is equally important that the appellants are in no way disadvantaged by the orders that should be made. I suggested at the outset of this hearing that one important provision that should be added to the orders was that there should be liberty to apply, so that if it becomes apparent during the hearing of the appeal that in some way the terms of the orders have disadvantaged any of the Names in making the points they want to make on the appeal, then there should be an opportunity to reconsider. If that were to involve suggesting that Equitas should be put in a position different from that which they were put in the court below, then Equitas should have an opportunity of arguing the point before this court. Mr Edelman very properly put down a marker that the basis upon which Equitas were prepared to allow this information to be supplied, was on the basis of the confidentiality order that was made in June 2000. That is well understood but, if any litigant was disadvantaged, it is possible that some practical solution might be found. But Equitas should be given the opportunity to deal with that.
7. In those circumstances, the order, fifth draft of which is before us, should be made in the terms of that draft. But, it should have a paragraph which gives liberty to apply. That is an important addition. A paragraph relating to transcripts should also be added. We understand that there was a term in the orders in the court below relating to transcripts and a similar term should be incorporated into that order.
8. An application was made by Equitas and LMCS for costs. They only pursued that as against Sir William Jaffray and Mr Carter. In my view, it is understandable that some litigants in person should be concerned about these confidentiality orders. It would be inappropriate to make an order for costs against them. Therefore, no order for costs will be made.
9. MR HARRISON: One final question on the transcript of this hearing and of the judgment. Litigants in person, generally, could not join a subscription today of somewhere in the neighbourhood of £30,000. We are impecunious people. Master Miller saw our financial statements and assessed us a certain amount to be in the trial. Cresswell J in my own case, the Harrison proceedings, directed lawyers in order for me to have a fair trial, to be provided with transcripts of various things which were necessary. Can we, the litigants in person care of Mr Carter, have a copy of the transcript of this hearing, because, in effect, if we lose in this litigation, Lloyd's can take my house away. That is how they will get the money back. But I do not have the cash funds to pay for a transcript and judgments and so forth. We are litigants in person, we are a separate group. Could we have a copy of the transcript of this hearing? Freshfields will have one. They are well funded people, we are not. We are plain people who were recruited into Lloyd's on the basis of our homes in most cases. That is not a liquid asset to be paying extra money.

LORD JUSTICE WALLER: Who are you suggesting pays for the transcript?

MR HARRISON: That Lloyd's recover the cost of the transcript from me at the end of the trial.

LORD JUSTICE WALLER: You are not suggesting it comes out of public funds?

MR HARRISON: Definitely not. Lloyd's is the one who we allege is the crook in this case. They recruited us.

MR ALDOUS: We are not prepared to fund the production of another transcript. They are all there, they will be making their notes in this and in the submissions that go on. We are not prepared to fund this litigation any further against Lloyd's.

MR HARRISON: It was on 21 January only when I saw the transcript - I believe Mr Carter paid for it and let me see a copy of it - it was only when I saw the transcript I remembered what Mr Aldous said about the pleadings on the 21st, and it was incorrect. LORD JUSTICE WALLER: It is most unusual for anybody to get a transcript of anything that goes on in the Court of Appeal. We are not going to order Lloyd's to pay. You will have to make other arrangements if you want a transcript of this hearing.

MR HARRISON: They have written me a letter quoting from the transcript selectively.

LORD JUSTICE WALLER: We cannot assist you, Mr Harrison.

MR HARRISON: You will get a letter on that.

SIR WILLIAM JAFFRAY: Can I raise two very short points.

LORD JUSTICE WALLER: I am afraid not.

SIR WILLIAM JAFFRAY: Half a minute. Could the court please let us have an order of 21 January which is outstanding. It has not been agreed.

LORD JUSTICE WALLER: You can deal with that through the normal channels, not me.

SIR WILLIAM JAFFRAY: Could the court direct Lloyd's to reply, on my evidence of perjury, the Ladd v Marshall test. I wish to have that crystallised in the next few days? LORD JUSTICE WALLER: That is not before us, Sir William. They will be replying, otherwise they will be in trouble.

SIR WILLIAM JAFFRAY: Thank you.

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