QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
HH Judge Thornton QC
133 -137 Fetter Lane, London, EC4A 1HD |
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B e f o r e :
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Burkle Holdings Limited |
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David Eric Laing |
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Mr Jonathan Marks QC (instructed by McBride Wilson & Co, The Courtyard, Queen's House, 55 – 58 Lincoln's Inn Fields, London, WC2A 3LJ, Ref: PB/hnc/LAI1-3) for the Defendant
Hearing dates: 10 and 13 June 2005
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Crown Copyright ©
HH Judge Thornton QC:
1. Introduction
(1) Whether the contents contained in identified passages in 6 documents provided by Mr Kelly to Mr Laing without Burkle's authority may be adduced in evidence at the trial;
(2) Whether Burkle is entitled to an injunction to restrain Mr Laing from referring to or relying on for any purposes whatsoever, the contents of, or the information contained in the passages in the documents referred to in paragraph (1).
3. Factual and Procedural Background and Issues for Determination
3.1. Factual Background
3.2. The Loan and Oral Agreements
3.3. Mr Kelly and Ms Krywald
3.4. The Current Dispute
3.5. Supporting or Corroborative Evidence of the Oral Agreements
"You, Mr Kelly, need not bother about the 12½% profit share when negotiating a new loan agreement because my company, [European], now has a 12½% shareholding in [New Federal]. My entitlement to the profit share in the 1999 loan agreement has been satisfied by the allotment of those shares to [European]. The 1999 loan agreement therefore has no continuing effect. Thus, the proposed new profit share agreement is not to be proceeded with".
Thus, if the admission was proved to have been made, it would provide corroboration of Mr Laing's case that there was a second but not a first oral agreement, that the profit share obligation was replaced by the transfer to European of the beneficial ownership in the shares previously held as security and that the second loan agreement completely superseded the first loan agreement.
4. Factual Background to First and Second Alleged Oral Agreements
"I understand from Ian that you are happy with the Burkle Holdings Agreement in the form I sent you with my letter of 20 March 2002."
5. Procedural History
6. Mr Kelly's Statements
6.1. The Issues
6.2. The Reliance Placed on the Statements
"see the notes of our conversation with Mr Watson on 2 May 2002 on file number BUR336/3."
This is a reference to his attendance note of that conversation.
(1) A CPR 33.2(3) statement must be served. The notice should identify the hearsay. In this context, that means that the statement should clearly identify the words used by Mr Watson that are to be adduced in evidence and identify the occasion, the context of the conversation or meeting, how Mr Watson came to be saying these matters and why Mr Kelly says he is able to give this evidence to the court given that he was acting as Mr Watson's solicitor at the time he was speaking to Mr Watson and hearing the words being reported (CPR 33.2(3)) and CEA, sections 2(1)(b) and 4).
(2) There is no need for Mr Kelly to give evidence if the context of the statement is clear from the witness statement or document containing the hearsay but Burkle can call for him to cross-examine him. Such cross-examination is limited to cross-examination "on the contents of the statement." (CPR 33.4(2)).
(3) Burkle can call for reasonable and practicable particulars of or relating to the evidence.
6.3. Parties' Submissions
6.4. Webster v James Chapman
"… If a document has been disclosed" [or I interpolate handed over] "be it by trickery, accident or otherwise, the benefit and protection of legal privilege will have been lost. Secondary evidence of the document will have come into the possession of the other side to the litigation. The question then will be what protection the court should provide given that the document which will have come into the possession of the other side will be confidential and that use of it will be unauthorised. If the document was obviously confidential and had been obtained by a trick or by fraud, it is not difficult to see that the balance would be struck in favour of the party entitled to the confidential document. If the document had come into the possession of the other side not through trick or fraud but due to a mistake or carelessness on the part of the party entitled to the document or by his advisers, the balance will be very different from the balance in a fraud case.
Suppose a case where the privileged document has come into the possession of the other side because of carelessness on the part of the party entitled to keep the document confidential and has been read by the other party, or by his legal advisers, without realising that a mistake has been made. In such a case, the future conduct of the litigation by the other party would often be inhibited or made difficult were he to be required to undertake to shut out from his mind the contents of the document. It seems to me that it would be thoroughly unfair that the carelessness of one party should be allowed to put the other party at a disadvantage.
I do not think that this branch of the law is one where any firm rules as to how the balance should come down should be stated. It must be highly relevant to consider the manner in which the privileged document has come into the possession of the other side. It must be highly relevant to consider the issues in the action and the relevance of the document to those issues. It must be highly relevant to consider whether, under any Rules of the Supreme Court, the document ought in one way or another to have been disclosed anyway. All circumstances will have to be taken into account, as it seems to me, in deciding how the balance should be struck.
So I do not accept the submission that in the present case I have no discretion. I regard the present case as one in which the claimant is seeking to protect the confidential and privileged document, namely the original report. The document has, by mistake, found its way into the hands of the defendant and I must consider whether its confidential character should now be protected by the grant of orders the plaintiff seeks so as to prevent any use of it being made by the defendant." [3]
6.5. The Balancing of the Various Relevant Factors
1. Circumstances of Disclosure
2. Use of the Statements in the Trial
3. Delayed Application
4. Conclusion
HH Judge Thornton QC
Note 1 [2005] EWHC 638 TCC [Back] Note 2 [1989] 3 All ER 939. [Back] Note 3 See pages 946h – 947 e. [Back]