First Instance Proceedings

Andrews, Neil

doi:10.1007/978-94-007-2294-1_3

Neil Andrews²

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 10))

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Abstract

This chapter provides a survey of the full range of proceedings in the first instance of litigation. It addresses five groups of principal topics. (1) The first encompasses initial measures that already produce tangible results and that sometimes result in early termination of lawsuits, i.e. interim payments, interim injunctions, default judgments, summary judgments and striking out of claims and defences. (2) The second group governs disclosure of all sorts ranging from pre-action disclosure to disclosure against third parties. (3) The third group concerns privileges and immunities against disclosure, i.e., legal advice privilege, litigation privilege and factual witness immunity. (4) The fourth group addresses different systems of expert testimony. (5) Finally, the chapter examines trial and evidence at trial.

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Notes

1.
s 20, Administration of Justice Act 1969.
2.
Responding to the criticism made in Associated Bulk Carriers Ltd v. Koch Shipping Inc [1978] 2 All ER 254, CA, of the narrowness of this regime.
3.
CPR 25.1(1)(k) defines an interim payment as: ‘an order (referred to as an order for interim payment) under rule 25.6 for payment of any damages, debt or other sum (except costs) which the court may hold the defendant liable to pay.’
4.
CPR 25.7(2).
5.
CPR 25.7(3); on set-off, Andrews, English Civil Procedure, 11.07 ff; and on counterclaims, ibid., 11.65 ff; comparative discussion, R. Zimmermann, Comparative Foundations of a European Law of Set-off and Prescription (Cambridge: Cambridge University Press, 2002).
6.
Unreported, 10 May 2010: [2010] All ER (D) 96 (May).
7.
[2009] EWCA Civ 204; [2010] 1 WLR 409.
8.
CPR 25.9.
9.
CPR 38.2(2)(b).
10.
s 37, Senior Courts Act 1981.
11.
F Hoffmann—La Roche & Co AG v. Secretary of State for Trade & Industry [1975] AC 295, 360–1, HL, American Cyanamid Co v. Ethicon Ltd [1975] AC 396, 407–9, HL; on enforcement of the cross-undertaking, Cheltenham & Gloucester Building Society v. Ricketts [1993] 1 WLR 1545, CA, Goldman Sachs International v. Philip Lyons The Times 28 February, 1995, CA, Barratt Manchester Ltd v. Bolton MBC [1998] 1 WLR 1003, CA, Customs & Excise Commissioners v. Anchor Foods Ltd [1999] 1 WLR 1139.
12.
[1975] AC 396, HL.
13.
Series 5 Software Limited v. Clarke [1996] 1 All ER 853; Laddie J in Antec International v. Southwestern Chicks (Warren) Ltd [1997] FSR 278 and in Direct Line Group Ltd v. Direct Line Estate Agency and Others Ltd [1997] FSR 374, 376; for comment on the Series 5 Software case, Barnsley Brewery Co Ltd v. RBNB [1997] FSR 462, Robert Walker J and SIG Architectural Products Ltd v. Castle House Windows Ltd (unreported 20 June 1996), Robert Walker J; Jacob J in Cable and Wireless plc v. British Telecommunications plc (unreported, 8 December, 1997).
14.
Series 5 Software case [1996] 1 All ER 853.
15.
For example, Intelsec Systems Ltd v. Grech-Cini [1999] 4 All ER 11, 25 and R v. Secretary of State for Health, ex p Imperial Tobacco Ltd [2000] 1 All ER 572, 598, CA, per Laws LJ (‘American Cyanamid is the ordinary rule by which applications for interlocutory injunctions in private law proceedings are decided every day…’); R v. Secretary of State for Health ex p Imperial Tobacco Ltd [2001] 1 WLR 127, 131, 135, HL; and Att-Gen v. Punch [2002] UKHL 50; [2003] 1 AC 1046, at [74], [99], [100].
16.
Andrews, English Civil Procedure, 18.53 to 18.65.
17.
Cayne v. Global Natural Resources Ltd [1984] 1 All ER 225, CA.
18.
Office Overload Ltd v. Gunn [1977] FSR 39, 44, CA, per Bridge LJ.
19.
Shephard Homes Ltd v. Sandham [1971] Ch 340, Megarry J; Locabail v. Agroexport (‘The Sea Hawk’) [1986] 1 WLR 657, CA affirming this exception to American Cyanamid; cf Akai Holdings Limited (in compulsory liquidation) v. RSM Robson Rhodes LLP and Another [2007] EWHC 1641, Briggs J.
20.
Smith v. Inner London Education Authority [1978] 1 All ER 411, CA; Express Newspapers Ltd v. Keys [1980] IRLR 247; Thanet DC v. Ninedrive Ltd [1978] 1 All ER 703.
21.
Sir David Eady, ‘Injunctions and the Protection of Privacy,’ Civil Justice Quarterly 29 (2010): 411.
22.
Eady, ibid., at 425–7.
23.
Ibid., at 425–7.
24.
[2010] UKSC 1; [2010] 2 AC 697.
25.
[2011] EWCA Civ 42; [2011] 2 All ER 324; on injunctions to protect confidentiality in the family context, Imerman v. Tchenguiz [2010] EWCA Civ 908; [2011] Fam 116.
26.
JIH case [2011] EWCA Civ 42; [2011] 2 All ER 324, at [40].
27.
Ibid., at [21]; and on anonymity more generally, Pink Floyd Music Ltd v. EMI Records Ltd [2010] EWCA Civ 1429; [2011] 1 WLR 770 (commercially sensitive royalty figure; no need for private hearing; sufficient for the figure not to be divulged in open court; lower court’s decision on private proceedings not binding on Court of Appeal in same litigation).
28.
CPR 12.1 and 12.3; CPR 10.2 and CPR 15.3.
29.
CPR 12.4(1)(a)–(c).
30.
For exceptions, CPR 12.9, 12.10, 12.11.
31.
CPR 12.4(2), 12.10, 12.11.
32.
CPR 12.2; PD (2) 1.2.
33.
Evans v. Bartlam [1937] AC 473, 480, HL, per Lord Atkin.
34.
CPR 13.3.
35.
The leading pre-CPR (but still illuminating) decision is Alpine Bulk Transport Co Inc v. Saudi Eagle Shipping Co Inc (The Saudi Eagle) [1986] 2 Lloyd’s Rep 221, CA; considered in Allen v. Taylor [1992] 1 Personal Injury and Quantum Reports P 255, CA and Shocked v. Goldschmidt [1998] 1 All ER 372, 376, CA (the last case in fact concerned with non-appearance at trial).
36.
Day v. RAC Motoring Services Ltd [1999] 1 WLR 2150, CA.
37.
Ibid., 2157.
38.
Strachan v. The Gleaner Co Ltd [2005] 1 WLR 3204, PC.
39.
Clapp v. Enron [2005] EWCA Civ 1511 at [36] ff, citing Odyssey (London) Ltd v. OIC Run-off [2001] Lloyd’s Rep (Insurance) 1.
40.
Burchmore v. Hills (1935) 79 Law Journal Newspaper 30.
41.
City Construction Contracts (London) Ltd v. Adam, The Times 4 January, 1988, CA.
42.
CPR 13.2, 12.3(1), (2).
43.
CPR 13.2, 12.3(3).
44.
CPR 13.2(c), 12.3(3)(b).
45.
CPR 13.2, 12.3(3)(c), 14.4, 14.7.
46.
Godwin v. Swindon BC [2001] 4 All ER 641, CA, at [49], per May LJ, considering CPR 13.3(1)(b); Akram v. Adam [2004] EWCA Civ 1601; [2005] 1 WLR 2762, at [42] and [43]: service is technically effective under the deemed service regime even if notice was never received; but default judgment will not be set aside where there is no reasonable basis for the proposed defence and the defendant has delayed in applying to have the default judgment set aside, e.g., City & Country Properties Ltd v. Kamali [2006] EWCA Civ 1879; [2007] 1 WLR 1219, at [17], noted J. Sorabji, Civil Justice Quarterly 26 (2007): 279.
47.
CPR 39.3(5); which requires, among other things, proof of a ‘good reason’ for non-attendance at trial; see Estate Acquisition and Development Ltd v. Wiltshire [2006] EWCA Civ 533; this topic has led to confusion: e.g., Nelson v. Clearsprings (Management) Ltd [2006] EWCA Civ 1854; [2007] 2 All ER 407; for the general common law principles governing this context, Gaydamak v. UBS Bahamas Ltd (Bahamas) [2006] UKPC 8; [2006] 1 WLR 1097.
48.
Ibid., 9.33 n 39; e.g., Haward v. Fawcetts [2006] UKHL 9; [2006] 1 WLR 682, on s 14A, Limitation Act 1980.
49.
Senate Electrical Wholesalers Ltd v. Alacatel Submarine Networks Ltd [1999] 2 Lloyd’s Rep 243, CA, 355–7; Laminates Acquisition Co v. BTR Australia [2003] EWHC 2540 (Comm), Cooke J.
50.
Cremdean Properties v. Nash (1977) 244 EG 547, CA.
51.
For example, Customs & Excise v. Barclays Bank plc [2006] UKHL 28; [2007] 1 AC 181; Deep Vein Thrombosis and Air Travel Group Litigation [2005] UKHL 72; [2005] UKHL 72; [2006] 1 AC 495.
52.
CPR 24.5.
53.
National Westminster Bank plc v. Daniel [1993] 1 WLR 1453, 1457, CA.
54.
Swain v. Hillman [2001] 1 All ER 91, 92, CA; for other judicial observations on this test, see the references collected by Blackburne J in HRH The Prince of Wales v. Associated Newspapers Limited [2006] EWHC 522 (Ch), at [11]; for comment on the CPR test, Derek O’Brien, ‘The New Summary Judgment: Raising the Threshold of Admission,’ Civil Justice Quarterly 18 (1999): 132, 137, 145–8.
55.
PD (24) 5.1(3).
56.
PD (24) 4; Yorke Motors Ltd v. Edwards [1982] 1 WLR 444, HL.
57.
PD (24) 4 (see also PD (24) 5).
58.
Note to CPR 24.6, cross-referring to CPR 3.1(3); PD (24) 5.2.
59.
Re Ford [1900] 2 QB 211.
60.
Olatawura v. Abiloye [2002] EWCA Civ 998; [2003] 1 WLR 275, the court recognised a power to make an order for a security payment by an individual claimant who was mostly resident outside the jurisdiction, and having modest financial means; this power subsists independently of the general regime concerning security for costs contained in CPR Part 25, Section II; the exceptional nature of this case was emphasised in Huscroft v. P & O Ferries Ltd [2010] EWCA Civ 1483; [2011] 1 WLR 939, noting also at [15] ff the discussion of Olatawura in Ali v. Hudson [2003] EWCA Civ 1793; [2004] CP Rep 15, CA, especially the summary by Clarke LJ at [40], and also noting at [16] and [19] Rimer J’s decision in Halabi v. Fieldmore Holdings Ltd [2006] EWHC 1965 (Ch).
61.
Generally on abuse of process, Andrews, English Civil Procedure, Chap. 16.
62.
CPR 3.4(2)(a) to (c).
63.
[2010] EWCA Civ 1170; [2011] 2 WLR 945, CA.
64.
Securum Finance Ltd v. Ashton [2001] Ch 291, CA.
65.
Aktas v. Adepta [2010] EWCA Civ 1170; [2011] 2 WLR 945, CA, at[53].
66.
Limitation Act 1980; Andrews, English Civil Procedure, Chap. 12; Zuckerman on Civil Procedure, 24.4 ff; A. McGee, Limitation Periods (6th edn, 2010); ‘Limitation of Actions’ (Law Commission Report No 270, HC 23, 2001); on which, Neil Andrews (1998) Cambridge Law Journal 588; R. James, Civil Justice Quarterly 22 (2003): 41.
67.
s 33, Limitation Act 1980.
68.
[2010] EWCA Civ 1170; [2011] 2 WLR 945, CA, at [72].
69.
[2000] 3 All ER 346, 370–3, CA.
70.
S v. Gloucestershire County Council [2000] 3 All ER 346, 373.
71.
Ibid., at 372–3.
72.
[2001] 2 All ER 513, HL, notably at [90] ff, and [134] ff.
73.
Three Rivers DC v. Bank of England [2006] EWHC 816 (Comm) (12 April 2006), Tomlinson J at [1].
74.
Sir Anthony Clarke MR, ‘The Supercase-Problems and Solutions’, 2007 Annual KPMG Forensic Lecture: available at http://www.judiciary.gov.uk/docs/speeches/kpmg_speech.pdf.
75.
Andrews, English Civil Procedure, 20–15 to 20–19.
76.
A. Zuckerman, ‘A Colossal Wreck—The BCCI/Three Rivers Litigation,’ Civil Justice Quarterly (2006): 287.
77.
Three Rivers case [2001] 2 All ER 513, HL, at [90] ff, and [134] ff, especially at [180], [181].
78.
[2000] 2 BCLC 167; considered in Ul-Haq v. Shah [2009] EWCA Civ 542; [2010] 1 WLR 616, and Masood v. Zahoor [2009] EWCA Civ 650; [2010] 1 WLR 746
79.
[2009] EWCA Civ 650; [2010] 1 WLR 746.
80.
[2009] EWCA Civ 542; [2010] 1 WLR 616.
81.
Ibid.
82.
Zuckerman, Civil Justice Quarterly 27 (2008): 419; and at length Civil Justice Quarterly 30 (2011): 1.
83.
[2000] 2 BCLC 167, CA.
84.
Zuckerman, Civil Justice Quarterly 30 (2011): 1, noting that if a case is procured by fraud, and judgment is then set aside, or an appeal against it succeeds, the fraudulent party would be precluded from re-litigating the claim even if you confined himself to the non-fraudulent elements of his claim; and noting the so-called insurance rule, that a fraudulent over-claim will preclude judgment for the true (smaller) loss.
85.
Leading practitioner works are: P. Matthews and H. Malek, Disclosure (3rd edn, London: Sweet & Maxwell, 2010) and C. Hollander, Documentary Evidence (10th edn, London: Sweet & Maxwell, 2009); Andrews, English Civil Procedure, Chap. 26; Zuckerman on Civil Procedure (2nd edn, London, 2006), Chap. 14.
86.
Tweed v. Parades Commission for Northern Ireland [2006] UKHL 53; [2007] 2 All ER 273 at [2], per Lord Bingham.
87.
For the inspiration, Lord Woolf, Access to Justice: Interim Report (London, 1995), Chap. 21, paras 1–9.
88.
The ‘Peruvian Guano’ test: Compagnie Financière v. Peruvian Guano Co (1882) 11 QBD 55, 63, CA.
89.
Sir Johan Steyn (later Lord Steyn), preface to Hodge and Malek, Discovery (London, 1992), reprinted in Matthews and Malek, Disclosure; R. Cranston, ‘Complex Litigation: the Commercial Court,’ Civil Justice Quarterly 26 (2007): 190, 203.
90.
Especially, CPR 31.3(2), 31.7(2), 31.9(1).
91.
CPR 31.6.
92.
The court can vary the width of disclosure in special situations: CPR 31.5(1)(2).
93.
CPR 31.4.
94.
See PD (31), at (new) para 2A on the duty to disclose electronic data, including ostensibly ‘deleted’ documents: see the Appendix to this lecture.
95.
(1) ‘Construction and Engineering Disputes’; (2) ‘Defamation’; (3) ‘Personal Injury Claims’; (4) ‘Clinical Disputes’; (5) ‘Professional Negligence’; (6) ‘Judicial Review’; (7) ‘Disease and Illness Claims’; (8) ‘Housing Disrepair Cases’; and (9) ‘Possession Claims based on Rent Arrears’; (10) ‘Possession Claims based on Mortgage etc Arrears in respect of Residential Property’; (11) ‘Low Value Personal Injury Claims in Road Traffic Accidents’.
96.
Practice Direction-Pre-Action Conduct.
97.
Practice Direction-Pre-Action Conduct, para’s 1.2(1), 4.4(3), 6.1(1), 7, 9.2; Annex A para’s 2.2(1), 4.2(5)(6)(7), 5.1.
98.
Practice Direction-Pre-Action Conduct, para 9.2; S. Gibbons, ‘Protecting Documents Disclosed under Pre-Action Protocols against Subsequent Use,’ Civil Justice Quarterly (2002): 254.
99.
Sir Rupert Jackson, Review of Civil Litigation Costs (December, 2009, London: Stationery Office, 2010), Chap. 35, at 343 ff.
100.
CPR 31.16 (3) states: The court may make an order under this rule only where—
1. (a)
  the respondent is likely to be a party to subsequent proceedings;
2. (b)
  the applicant is also likely to be a party to those proceedings;
3. (c)
  if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and
4. (d)
  disclosure before proceedings have started is desirable in order to—
  1. (i)
    dispose fairly of the anticipated proceedings;
  2. (ii)
    assist the dispute to be resolved without proceedings; or
  3. (iii)
    save costs.
101.
[2002] 1 WLR 1562, CA; Andrews, English Civil Procedure, 26.70; for a successful application in a commercial context, Landis and Gyr Ltd v. Scaleo Chip ET [2007] EWHC B3 (QB).
102.
More precisely, under the procedure administered by the Common Law courts, as distinct from the pre-1875 Court of Chancery, which provided a parallel but distinct system of procedure: see the ‘historical note’ at the end of this paragraph.
103.
Norwich Pharmacal Co v. Commissioners for Customs and Excise [1974] AC 133, 203, HL, per Lord Kilbrandon.
104.
[2002] 1 WLR 2033, HL.
105.
In Ashworth Hospital Authority v. MGN Ltd [2002] UKHL 29; [2002] 1 WLR 2033, HL, Lord Woolf CJ re-stated the principles governing this jurisdiction.
106.
Andrews, English Civil Procedure, 26.102 ff on these various categories; note also Carlton Film Distributors Ltd v. VCI plc [2003] EWHC 616; [2003] FSR 47, Jacob J (non-party holding records of amount of film copies made in suspected violation of prospective defendant’s contract with applicant; information necessary to enable applicant to plead breach of contract and sign a statement of truth).
107.
Norwich Pharmacal Co v. Commissioners for Customs and Excise [1974] AC 133, HL (government department having details of imports of pharmaceutical drugs into the UK; suppliers’ names and addresses needed by applicant to ascertain identity of alleged infringer of applicant’s patent rights).
108.
Mercantile Group (Europe) AG v. Aiyele [1994] QB 366, CA (if the information is sought to assist enforcement after judgment, Hoffmann LJ observed that the ‘mere witness’ rule is in any case inapplicable).
109.
P v. T Ltd [1997] 1 WLR 1309, Scott V-C.
110.
Ashworth Hospital Authority v. MGN Ltd [2002] UKHL 29; [2002] 1 WLR 2033, HL.
111.
JSC BTA Bank v. Solodchenko (No 2) [2010] EWHC 2843; [2011] 1 WLR 906, Proudman J.
112.
In the USA, the fact that the remedy of injunction is ‘equitable’ places a claim for such relief outside the constitutional guarantee of jury trial: see G. Hazard and M. Taruffo, American Civil Procedure (New Haven, CT: Yale University Press, 1993), 130.
113.
For example, no separate doctrine of shared ‘equitable’ mistake, The Great Peace [2003] QB 679, CA; no separate equitable principles of construction of contracts, BCCI v. Ali [2001] UKHL 8; [2002] 1 AC 251, at [17].
114.
For example on the question whether a beneficial (as distinct from legal) owner has title to sue in the tort of negligence: Shell UK Ltd v. Total UK Ltd [2010] EWCA Civ 180; [2010] 3 All ER 1192 (beneficial owern competent to sue if joins legal owner as co-claimant).
115.
Inaugural Oxford lecture, A.S. Burrows, ‘We do this at Common Law but that in Equity,’ OJLS 22 (2002): 1.
116.
CPR 31.17; this rule concerns only documents: see CPR 31.17(3)(4); cf CPR 18.1 (‘further information’): this rule has been held to require a defendant to disclose details of its liability insurance, Harcourt v. Griffin (Representative of Pegasus Gymnastics Club) [2007] EWHC 1500 (QB), Irwin J.
117.
Three Rivers DC v. Bank of England (No 4) [2002] EWCA Civ 1182; [2003] 1 WLR 210, CA, at [32], [33].
118.
American Law Institute/UNIDROIT’s Principles of Transnational Civil Procedure (Cambridge University Press, 2006), Principle 16.
119.
Hence the title to Part VII (‘Access to Information: Disclosure and Evidence’) of Andrews, English Civil Procedure.
120.
CPR Part 31.
121.
CPR 31.10(2) and 31.15, subject to certain qualifications added at CPR 31.3(2); Form N 265, available on-line, is instructive.
122.
CPR 31.4.
123.
PD (31), para 2A; See also Earles v. Barclays Bank [2010] Bus LR 566, Judge Simon Brown QC.
124.
For example, Civil Evidence Act 1968, s 14.
125.
CPR 31.6.
126.
The court can order narrower disclosure in special situations: CPR 31.5(1),(2).
127.
On the duty to make disclosure until the end of the relevant proceedings, CPR 31.11.
128.
CPR 31.14.
129.
CPR 31.8; Three Rivers DC v. Bank of England (No 4) [2002] EWCA Civ 1182; [2003] 1 WLR 210, CA, at [46] to [51] (application to obtain disclosure held by non-party, HM Treasury, at the National Archive, Kew, London; held that the defendant, the Bank of England, had no possession of these documents; nor any right to possess them; nor any right to inspect them).
130.
CPR 31.3(1)(b).
131.
Wallace Smith Trust Co v. Deloitte Haskins & Sells [1997] 1 WLR 257, CA.
132.
For example, when deciding whether to order specific disclosure under CPR 31.12.
133.
Wallace Smith case [1997] 1 WLR 257, CA.
134.
GE Capital etc v. Bankers Trust Co [1995] 1 WLR 172, CA.
135.
Neil Andrews, Principles of Civil Procedure (London, 1994), 11-056.
136.
As Lord Hoffmann explained in Taylor v. Serious Fraud Office [1999] 2 AC 177, 207, HL.
137.
Bowman v. Fels [2005] EWCA Civ 226; [2005] 1 WLR 3083, at [88], per Brooke LJ.
138.
cf, under the pre-CPR practice, ‘collateral’ use had included certain uses in same action: Milano Assicurazioni SpA v. Walbrook Insurance Co Ltd [1994] 1 WLR 977; and Omar v. Omar [1995] 1 WLR 1428; respectively, proposed amendments to writ or statement of claim.
139.
SmithKline Beecham Biologicals SA v. Connaught Laboratories Inc [1999] 4 All ER 498, CA.
140.
CPR 31.22; even in situation (a) however, the court can make a special order restricting or prohibiting use of a document: CPR 31.22(2); McBride v. The Body Shop International plc [2007] EWHC 1658 (QB), noting Lilly Icos Ltd v. Pfizer Ltd [2002] 1 WLR 2253, CA; AF Noonan (Architectural Practice) Ltd v. Bournemouth and Boscombe ACFC Ltd [2007] EWCA Civ 848; [2007] 1 WLR 2615, at [10], [15], [18], [19].
141.
For example, Omar v. Omar [1995] 1 WLR 1428; Watkins v. AJ Wright (Electrical) Ltd [1996] 3 All ER 31; Miller v. Scorey [1996] 1 WLR 1122; S.M.C. Gibbons, ‘Subsequent Use of Documents Obtained Through Disclosure in Civil Proceedings,’ 20 (2001): 303.
142.
[2010] EWCA Civ 908; [2011] Fam 116, at [54] ff (Lord Neuberger MR); see also the recent discussion in Gray v. News Group Newspapers Ltd [2011] EWHC 349 (Ch); [2011] 2 All ER 725, at [65] ff, per Vos J; other leading judicial discussions of ‘confidentiality’ and ‘privacy’ include: (i) Douglas v. Hello! Ltd [2007] UKHL 21; [2008] 1 AC 1, at [272]; (ii) Browne v. Associated Newspapers Ltd [2007] EWCA Civ 295; [2008] QB 103; (iii) McKennit v. Ash [2006] EWCA Civ 1714; [2008] QB 73; (iv) HRH The Prince of Wales v. Associated Newspapers Limited [2006] EWCA Civ 1776; [2008] Chap. 57; (v) Murray v. Express Newspapers plc [2008] EWCA 446; [2009] Ch 481. Earlier seminal cases on confidentiality are: Prince Albert v. Strange (1849) 2 De G & Sm 652; Duchess of Argyle v. Duke of Argyle [1967] Ch 302; Coco v. Clark (Engineers) Ltd [1969] RPC 41 and Fraser v. Evans [1969] 1 QB 349. On privacy and use of injunctions, see 3.09 noting Re Guardian News & Media Ltd [2010] UKSC 1; [2010] 2 AC 697; JIH v. News Group Newspapers Ltd [2011] EWCA Civ 42; [2011] 2 All ER 324; Imerman v. Tchenguiz [2010] EWCA Civ 908; [2011] 1 All ER 555. An important Strasbourg decision is Mosley v. UK (10 May 2011: Application 48009/08), where the European Court of Human Rights noted that The News of the World exposure of a ‘sex party’ involving Mosley and five women had already been the subject of a court order awarding compensation (£60,000) for breach of privacy under Article 8 and English domestic law, and that UK law was not defective in requiring the Press to give pre-publication notification to persons whose privacy might be violated (thereby, according to Mosley’s lawyers, enabling the ‘victim’ to seek a pre-publication injunction). The European Court of Human Rights said at [132]: having regard to the chilling effect to which a pre-notification requirement risks giving rise, to the significant doubts as to the effectiveness of any pre-notification requirement and to the wide margin of appreciation in this area, the Court is of the view that Article 8 does not require a legally binding pre-notification requirement.
143.
R.G. Toulson and C.M. Phipps, Confidentiality (2nd edn, London: Sweet & Maxwell, 2006; 3rd edn, 2012); P. Stanley, Confidentiality: A Restatement (Oxford: Hart, 2008); R. Pattenden, The Law of Professional–Client Confidentiality: Regulating the Disclosure of Confidential Personal Information (Oxford University Press, 2003).
144.
R v. Derby Magistrates’ Court, Ex p B [1996] AC 487, HL; B v. Auckland District Law Society [2003] UKPC 38; [2003] 2 AC 736, PC, at [50] to [56], per Lord Millett; B. Thanki, ed., ibid., at 1.26 to 1.30.
145.
Andrews, English Civil Procedure, Chap. 28.
146.
B v. Auckland District Law Society [2003] UKPC 38; [2003] 2 AC 736, PC at [44]; B. Thanki, ed., ibid., at 1.52 to 1.58.
147.
[2004] UKHL 48; (2005) 1 AC 610; noted Neil Andrews, Civil Justice Quarterly (2005): 185; S. Partington and J. Ward [2005] JBL 231; J. Seymour [2005] Cambridge Law Journal 54; C. Tapper (2005) 121 Law Quarterly Review 181; the leading historical survey conducted by an English court is Lord Taylor of Gosforth CJ’s remarkable speech in R v. Derby Magistrates Court, Ex p B [1996] AC 487, HL; and see H.L. Ho, ‘History & Judicial Theories of Legal Professional Privilege,’ 558.
148.
[2004] UKHL 48; [2005] 1 AC 610, at [62], referring to Taylor LJ’s statement in Balabel v. Air India [1988] Ch 317, 330, CA.
149.
[2004] UKHL 48; [2005] 1 AC 610, at [62].
150.
Andrews, Principles of Civil Procedure, 12-009.
151.
Three Rivers (No 6) [2004] UKHL 48; [2005] 1 AC 610, at [120].
152.
Ibid., at [38]; on this problematic topic, Thanki, ed., The Law of Privilege, 2–115 ff.
153.
[2010] EWCA Civ 1094; noted K. Hughes [2011] Cambridge Law Journal 19.
154.
(2011) New Law Journal 565; the Law Society for England and Wales will intervene in the appeal.
155.
Akzo Nobel ECJ Case C-550/07 (decision of 14 Sept 2010); noted A. Higgins, Civil Justice Quarterly (2011): 113; and L. Bastin, ‘Should ‘Independence’ of In-House Counsel be a Condition Precedent to a Claim of Legal Professional Privilege…?’ Civil Justice Quarterly 30 (2011): 33.
156.
[1972] 2 QB 102, 129, CA; not challenged on appeal, [1974] AC 405, 430–1, HL.
157.
[1972] 2 QB 102, 120, CA, arguendo, citing the Revenue Solicitors Act 1828, the Attorneys and Solicitors Act 1874 and the Solicitors Act 1932.
158.
‘Lawyer’, in England and Wales, includes an ‘in house lawyer’ (Passmore, Privilege, 4.041 to 4.046): but not under the law of the EU, A M & S Europe Ltd v. Commission of the EC [1987] QB, ECJ, Thanki, ed., The Law of Privilege, 1.41 to 1.44, and C. Passmore, ibid., 4.047 ff; in England, legal advice privilege has been extended to trade mark and patent agents, and certain other ‘quasi-legal’ advisors, mostly by statute, for references see Andrews, English Civil Procedure, 27.03 at nn 10–15 and B. Thanki, ed., ibid., at 1.40 to 1.51, Passmore, ibid., 1.144. In Bolkiah v. KPMG [1999] 2 AC 222, HL, privilege arose in the dealings between ‘forensic accountants’ and potential witnesses; but this seems to have been rooted in litigation privilege, C. Passmore, ibid., 1.145.
159.
Three Rivers DC v. Governor and Company of the Bank of England (No 5) [2003] EWCA Civ 474; [2003] QB 1556; distinguished in BBGP Managing General Partner Ltd & Ors v. Babcock & Brown Global Partners [2010] EWHC 2176 (Ch); [2011] 2 All ER 297; [2010] 2 CLC 248, at [42], per Norris J (agent entering into retainer with law firm and obtaining legal advice on behalf of its principal, a partnership; whole partnership a client, and not the agent).
160.
Re L [1997] AC 16, HL.
161.
[2003] EWCA Civ 474; [2003] QB 1556.
162.
449 US 383 (1981); cf the US material collected at Zuckerman on Civil Procedure, 15.43 ff, at nn 70–82, also noting J. Sexton, ‘A Post-Upjohn Consideration of Corporate-Client Privilege,’ NYULR 57 (1982): 442; on the danger of corporate ‘cloaking’, Thanki, ed., The Law of Privilege, 2.28 n 73, noting Australian discussion in Esso v. Federal Commissioner of Taxation (1999) 201 CLR 49.
163.
[2005] 1 AC 610; [2004] UKHL 48 at [35], per Lord Scott, at [57], per Lord Rodger, at [70] and [73], per Lord Carswell, also citing the Court of Appeal in Three Rivers (No 5) [2003] QB 1556, CA, at [35], per Longmore LJ.
164.
Thanki, ed., The Law of Privilege, 4.73–4.77; Andrews, English Civil Procedure, 26.17–27.18; note also the distinction between innocent consultation with a lawyer to parry a charge or meet an accusation, and nefarious attempts to conceal and stifle legal investigation or destroy evidence or concoct false or misleading evidence; on that distinction see Derby & Co Ltd v. Weldon (No 7) [1990] 1 WLR 1156, 1174 E-G, per Vinelott J; O’Rourke v. Darbishire [1920] AC 681, 613, HL, per Lord Sumner.
165.
R (on the Application of Morgan Grenfell & Co Ltd) v. Special Commissioners of Income Tax [2002] UKHL 21; [2003] 1 AC 563 (legal advice privilege available against a tax inspector’s demand for documents); statutory suppression of this privilege requires explicit language or ‘necessary implication’: Morgan Grenfell case, ibid., at [45], [46], and remarks by Lord Millett in B v. Auckland District Law Society [2003] UKPC 38; [2003] 2 AC 736, PC at [57] ff, and by Brooke LJ in Bowman v. Fels [2005] EWCA Civ 226; [2005] 1 WLR 3083 at [85] ff.
166.
[2009] UKHL 15; [2009] 1 AC 908.
167.
ss 27, 28, 32, Regulation of Investigatory Powers Act 2000, especially s 27(1)
168.
[2009] UKHL 15; [2009] 1 AC 908, at [67] and [68].
169.
[2009] UKHL 15; [2009] 1 AC 908, at [20] to [23] for details.
170.
(1884) 14 QBD 153, Stephen J; Passmore, Privilege, Chap. 8.
171.
Thanki, ed., The Law of Privilege (Oxford: Oxford University Press, 2006), 4.33–4.63; Andrews, English Civil Procedure, 26.19–27.20.
172.
R v. Central Criminal Court, ex p Francis & Francis [1989] AC 346, HL.
173.
Axa Seguros SA v. Allianz Insurance plc [2011] EWHC 268 (Comm), Christopher Clarke J, at [13] to [16], [40] to [41], [49] to [52].
174.
An unsolicited communication with a potential witness would be privileged even if the witness has not indicated that he intends to respect confidence: ISTIL Group Inc v. Zahoor [2003] 2 All ER 252; [2003] EWHC 165 (Ch), at [63] per Lawrence Collins J; Thanki, ed., The Law of Privilege, 3.35. On the question of loss of confidentiality in this context, Axa Seguros SA v. Allianz Insurance plc [2011] EWHC 268 (Comm), Christopher Clarke J, at [49] to [52].
175.
On the ‘dominant purpose’ test, Axa Seguros SA v. Allianz Insurance plc [2011] EWHC 268 (Comm), Christopher Clarke J, at [13] to [16], [40] to [41], [49] to [52]; Thanki, ed., The Law of Privilege, 3–73 ff.
176.
A ‘real prospect’ rather than a ‘mere possibility’: USA v. Philip Morris Inc (No 1) [2004] EWCA Civ 330; [2004] 1 CLC 811; Brooke LJ at [66] to [69]; Axa Seguros SA v. Allianz Insurance plc [2011] EWHC 268 (Comm), Christopher Clarke J, at [13] to [16], [40] to [41], [49] to [52]; Thanki, ed., The Law of Privilege, 3.47 ff.
177.
Re Duncan [1968] P 306; Minnesota Mining and Manufacturing Co v. Rennicks (UK) Ltd [1991] FSR 97, 99; Société Francaise Hoechst v. Allied Colloids Ltd [1992] FSR 66; International Computers (Ltd) v. Phoenix International Computers Ltd [1995] 1 All ER 413, 427 ff.
178.
Re L [1997] AC 16, HL.
179.
In the Three Rivers litigation, counsel for the Bank had conceded that the Bingham Inquiry was not an ‘adversarial’ procedure and that ‘litigation privilege’ could not, therefore, apply (on the basis of Re L [1997] AC 16, HL); with respect, it might be contended that the special context of that case—child protection proceedings—should be taken to restrict the ambit of that decision; however, that concession appears to have been later supported by Lord Scott in the Three Rivers appeal [2004] UKHL 48; [2005] 1 AC 610, at [10]; cf, Lord Rodger, ibid., at [53], who suggested that the ‘adversarial’ and ‘inquisitorial’ distinction might require further examination (also noting that Lord Nicholls, a dissentient in Re L, ibid., at 31 G to 32 L, had cautioned against a rigid distinction); Zuckerman on Civil Procedure, 15.110 ff; Thanki, ed., The Law of Privilege, 3.57 to 3.65; Passmore, Privilege, 3.058 ff.
180.
Several Law Lords in Three Rivers (No 6) [2004] UKHL 48; [2005] 1 AC 610 acknowledged this distinction between legal advice and litigation privilege: see Lord Scott at [10], Lord Rodger at [50] and [51], and Lord Carswell at [65] and [72]; Lord Rodger at [51] noted that Lord Edmund-Davies in Waugh v. BR Board [1980] AC 521, 541–2, HL, had said that this distinction had not always been borne in mind, and that lawyers had sometimes loosely spoken of a global ‘legal professional privilege’ doctrine; in Waugh’s case it was also made clear that litigation privilege is subject to a ‘dominant purpose’ test; the House of Lords in the Three Rivers case assumed that a ‘dominant purpose’ test also applies to legal advice privilege; on this last issue, Thanki, ed., The Law of Privilege, 2–169 ff.
181.
B. Thanki, ed., ibid., 1-08, 3-08 to 3-09; Passmore, Privilege, 3.002 ff.
182.
Cf. the contention that there is overlap: Zuckerman on Civil Procedure, 15.17.
183.
For example ‘… as you have no right to see your adversary’s brief, you have no right to see that which comes into existence merely as materials for the brief’: Anderson v. Bank of British Columbia (1876) 2 Chap. D 644, 656, per James LJ; cited with approval by Lord Simon of Glaisdale in Waugh v. British Railways Board [1980] AC 521, 537, HL.
184.
As for argument (i), besides the judicial statements listed at Andrews, English Civil Procedure, 27.25–27.27 (notably, Simon Brown LJ in Robert Hitchins Ltd v. International Computers Ltd [1996] EWCA Civ 1163, also cited in Passmore, Privilege, 3.205 ff) see the remarks of Lord Rodger in the Three Rivers (No 6) case [2004] UKHL 48; [2005] 1 AC 610, at [52], who offered strong support for this head of privilege: ‘Litigation privilege…is based on the idea that legal proceedings take the form of a contest in which each of the opposing parties assembles his own body of evidence and uses it to try to defeat the other… . In such a system each party should be free to prepare his case as fully as possible without the risk that his opponent will be able to recover the material generated by his preparations.’ He also approved a leading American discussion of this privilege: ‘In the words of Justice Jackson in Hickman v. Taylor [US Supreme Court, 329 US 495, 516 (1947)], “Discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary.”’ Charles J has also supported this privilege, doubting the cogency of the judicial dicta attacking litigation privilege: S v. B [2000] Fam 76, as noted by C. Passmore, ibid., at 3.019. Argument (ii) is noted by C. Passmore, ibid., 3.018, citing Lord Wilberforce in Waugh v. BR Board [1980] AC 521, 531, HL, and ibid., at 3.117, citing in the context of experts, Lord Denning MR in Re Saxton [1962] 1 WLR 968, 972, CA and Canadian decisions.
185.
Additional, although perhaps subsidiary, arguments are: the prospect of nit picking cross-examination concerning the drafting of witness statements, Thanki, ed., op. cit., at 3–128, and the financial free-rider problem, Andrews, English Civil Procedure, 27–34 ff.
186.
ISTIL Group Inc v. Zahoor [2003] 2 All ER 252; [2003] EWHC 165 (Ch), at [56] and [57] per Lawrence Collins J: ‘[56] The rationale for litigation privilege was said to be that ‘… the solicitor is preparing for the defence or for bringing the action, and all communications he makes for that purpose, and the communications made to him for the purpose of giving him the information, are, in fact, the brief in the action, and ought to be protected’ (Wheeler v. Le Marchant (1881) 17 Ch D 675, 684–5, per Cotton LJ) or ‘… as you have no right to see your adversary’s brief, you have no right to see that which comes into existence merely as materials for the brief’ (Anderson v. Bank of British Columbia (1876) 2 Ch D 644 at 656, per James LJ, cited with approval by Lord Simon of Glaisdale in Waugh v. British Railways Board [1980] AC 521, 537). [57] That rationale is not very attractive, and is perhaps ripe for reconsideration in the light of reforms which are designed to make litigation more open and less like a game of poker. More attractive as a rationale is the consideration that preparation of a case is inextricably linked with the advice to the client on whether to fight or to settle, and if so, on what terms.’
187.
For these and other judicial statements on this issue, Thanki, ed., The Law of Privilege, 3.110 to 3.129 and in Andrews, English Civil Procedure, 27.29 to 27.32; as Zuckerman on Civil Procedure, 15.30 and Thanki, ed., op. cit., at 3.88 to 3–90 observe, preparations for trial by a litigant in person should be privileged.
188.
[2005] 1 AC 610; [2004] UKHL 48 at [29], ‘I do not…agree that [litigation privilege is easily justified] in relation to those documents which although having the requisite degree of connection with litigation neither constitute nor disclose the seeking or giving of legal advice.’
189.
[1998] Ch 356, 362–71 (on which, Andrews, English Civil Procedure, 27.29–27.41). Sir Richard Scott V-C said: ‘… documents brought into being by solicitors for the purposes of litigation were afforded privilege because of the light they might cast on the client’s instructions to the solicitor or the solicitor’s advice to the client regarding the conduct of the case or of the client’s prospects. There was no general privilege that attached to documents brought into existence for the purposes of litigation independent of the need to keep inviolate communications between client and legal adviser. If documents for which privilege was sought did not relate in some fashion to communications between client and legal adviser, there was no element of public interest that could override the ordinary rights of discovery and no privilege. So, for example, an unsolicited communication from a third party, a potential witness, about the facts of the case would not, on this view, have been privileged. And why should it be? What public interest is served by according privilege to such a communication?’
190.
ISTIL Group Inc v. Zahoor [2003] 2 All ER 252; [2003] EWHC 165 (Ch), at [57] per Lawrence Collins J: ‘More attractive as a rationale is the consideration that preparation of a case is inextricably linked with the advice to the client on whether to fight or to settle, and if so, on what terms.’
191.
Neil Andrews, English Civil Justice and Remedies: Progress and Challenges: Nagoya Lectures (Tokyo: Shinzan Sha Publishers, 2007), 7.28–7.40.
192.
Zuckerman on Civil Procedure, 15.73.
193.
Neil Andrews, English Civil Justice and Remedies: Progress and Challenges: Nagoya Lectures (Tokyo: Shinzan Sha Publishers, 2007), 7–41.
194.
Andrews, Nagoya Lectures, ibid., at 7–39: The author suggests that the law should be changed to require that a ‘witness statement’ must contain the following declaration: that the witness has not received any assistance in writing the statement; where he has received assistance, he should further state whether this concerned the ‘contents’ or ‘matters of spelling, grammar and punctuation’. For judicial support for a more scrupulous approach to witness statement preparation, see Aquarius Financial Enterprises Inc v. Certain Underwriters at Lloyd’s (The Delphine) [2001] 2 Lloyd’s Rep 542, at [49], per Toulson J, cited in Commercial and Mercantile Courts Litigation Practice, eds. S. Sugar and R. Wilson (2004), 9.27; the Solicitors’ Code of Conduct (2007), issued by the Solicitors Regulation Authority: Rule 11.01, Guidance, at point (12)(e), prohibits a solicitor from ‘attempting to influence a witness, when taking a statement from that witness, with regard to the contents of their statement… .
195.
Andrews, Nagoya Lectures, ibid., at 7–40: (1) The instructing party should reveal to the expert (‘the chosen expert’): any previous report or comments received by the instructing party from another expert in connection with the present litigation; the reason why the instructing party chose not to use any other expert previously instructed to produce a report with a view to it being used in evidence. (2) The matters mentioned at (1) will become part of the ‘range of opinion’ which the chosen expert must consider in his report. (3) The chosen expert must state in his report whether he has received information from the instructing party for the purpose of (1) above; if so, details should be given; if not, a ‘nil return’ explicitly made. (4) The expert should also state in his report whether he has amended his report, to satisfy the instructing party’s suggestion; if he has, he should indicate whether the change concerned the content of his report or merely its language and presentation; if the content, he should give details by reference to specific paragraphs of his report and append the relevant portion of the earlier draft.’
196.
J.A. Jolowicz, On Civil Procedure (Cambridge: Cambridge University Press, 2000), 225.
197.
Experts arealso important in arbitration; they can be party-appointed, or appointed by the arbitral tribunal; see M. Mustill and S. Boyd, Commercial Arbitration: 2001 Companion Volume (London: Butterworths, 2001), 311–2, or J. Tackaberry and A. Marriott, Bernstein’s Handbook of Arbitration and Dispute Resolution Practice (4th edn, London: Sweet & Maxwell, 2003), 2–845 ff (a perceptive overview): both works also comment on s 37, Arbitration Act 1996 (England and Wales), which empowers the tribunal (unless the parties otherwise agree) to appoint ‘experts, legal advisers or assessors’, but it requires the tribunal to afford the parties opportunity to comment on their reports or opinion; such a tribunal-appointed expert etc can be used to supplement party-appointed expert opinion, Bernstein’s Handbook 2–858; in arbitration proceedings, instructions to experts are not covered by the CPR regime.
198.
For court assessors, see below.
199.
For example ‘Protocol for the Instruction of Experts to Give Evidence in Civil Claims’ (Civil Justice Council, 2005), which supplements CPR Part 35 and PD 35, covers ‘steps taken for the purpose of civil proceedings by experts or those who instruct them on or after 5th September 2005’, provided the relevant experts are ‘governed by Part 35’ (see, Protocol, at 5.1); however, it does not cover experts who are not instructed to give evidence ‘for the purpose of civil proceedings in a Court in England and Wales’. See also ‘Guidance on Instructing Experts’, Annex C to Practice Direction-Pre-Action Conduct.
200.
CPR 35.1 states: ‘Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.’
201.
CPR 35.4(1) to (3).
202.
The decision-making members of the relevant tribunal might themselves be ‘expert’: cf the constitution of Coroners Courts, medical appeal tribunals, etc. This specialisation is not available amongst the ordinary judiciary.
203.
CPR 35.3(1); in Anglo Group plc, Winter Brown & Co Ltd v. Winter Brown & Co Ltd, BML (Office Computers) Ltd, Anglo Group plc, BML (Office Computers) Ltd [2000] EWHC Technology 127 (8th March, 2000), at [108] to [110], Judge Toulmin QC, summarised ‘The Ikarian Reefer’ guidelines (‘The Ikarian Reefer’ [1993] 2 Lloyds Rep 68, at 81–2, per Cresswell J); Judge Toulmin added: ‘It is clear from the Judgment of Lord Woolf MR in Stevens v. Gullis [2000] 1 All ER 527, CA that the new Civil Procedure Rules underline the existing duty which an expert owes to the Court as well as to the party which he represents’; on the expert’s duty to the court, Blom-Cooper, ed, Experts in Civil Courts, Chap. 11.
204.
Or duty owed to ‘the instructing parties’, in the case of a ‘single, joint witness’ under CPR 35.7(2); or ‘any obligation’ owed by the expert to the person ‘by whom [the expert] is paid’); see CPR 35.3.
205.
CPR 35.14(1).
206.
Master John Leslie, Queen’s Bench Division, states (2007) that he has only encountered two instances since April 1999; in one case the problem arose between a litigant in person and his appointed expert.
207.
CPR 35.10(2).
208.
Phillips v. Symes (No 2) [2005] 1 WLR 2043, Peter Smith J.
209.
PD (35), para 3.3.
210.
Hodgkinson and James, Expert Evidence: Law and Practice, 1–012; adding that sometimes an expert can refer to facts as a necessary preliminary to his expert evidence.
211.
‘Protocol for the Instruction of Experts to Give Evidence in Civil Claims’ (Civil Justice Council, 2005), 13.9 to 13.11.
212.
For discussion of this range, see Law Reform Committee’s 17th Report, ‘Evidence of Opinion and Expert Evidence’ (Cmnd 4489, 1970), 1 ff; Jolowicz, On Civil Procedure, 224–5; P.L. Murray and R. Stürner, German Civil Justice (Durham, NC: Carolina Academic Press, 2004), 280–2; in Morgan Chase Bank v. Springwell Navigation Corporation [2006] EWHC 2755 (Comm), Aikens J noted, at [30] to [32], that expert evidence will not be admissible from a lawyer on construction of commercial contracts which are subject to English law; this is a question of (English) law for the court; unless the parties have used technical expressions outside the expertise of the judge; e.g., Kingscroft Insurance Co Ltd v. Nissan Fire & Marine Insurance Co Ltd (No 2) [1999] Lloyd’s Insurance and Reinsurance Reports, 603 at 622, per Moore-Bick J.
213.
Armstrong v. First York Ltd [2005] 1 WLR 2751, CA; [2005] EWCA Civ 277 at [28], approving Liddell v. Middleton [1996] PIQR P36 at p. 43.
214.
Law Reform Committee’s 17th Report, ‘Evidence of Opinion and Expert Evidence’ (Cmnd 4489, 1970), p. 5.
215.
Generally on judicial reasons and compliance with Art 6(1) of the European Convention on Human Rights and for a survey of the English case law, Andrews, English Civil Procedure, 5.39 ff.
216.
Arden LJ in Armstrong v. First York Ltd [2005] 1 WLR 2751, CA at [33], noting the leading decision English v. Emery Reimbold and Strick [2002] 1 WLR 2409, CA at [20] (in the English case the CA stated at [20] that the judge should ‘simply provide an explanation as to why he has accepted the evidence of one expert and rejected that of another. It may be that the evidence of one or the other accorded more satisfactorily with facts found by the Judge. It may be that the explanation of one was more inherently credible than that of the other. It may simply be that one was better qualified, or manifestly more objective, than the other. Whatever the explanation may be, it should be apparent from the judgment.’ And at [21] it said: ‘The essential requirement is that the terms of the judgment should enable the parties and any appellate tribunal readily to analyse the reasoning that was essential to the Judge’s decision.’
217.
For a judge’s unjustified resort to the burden of proof to resolve a conflict of expert evidence: Stephens v. Cannon [2005] EWCA Civ 222; CP Rep 31.
218.
DN v. London Borough of Greenwich [2004] EWCA Civ 1659, at [28] to [30], where the Court of Appeal was unimpressed by the judge’s statement of reasons on a point of rival expert opinion, but declined to order a new trial.
219.
Sometimes proportionality will justify use of a ‘single, joint expert’ on a relatively short issue which forms only a part of a more substantial litigation; for example, the quantification of liability in an action for professional negligence against a defendant accountant might be the subject of a single, joint expert’s report, but the (prior) question of liability might be the subject of party-appointed experts; I am grateful to Master John Leslie, Queen’s Bench Division, for this observation.
220.
L. Blom-Cooper, ed., Experts in Civil Courts, Chap. 5; Hodgkinson and James, Expert Evidence: Law and Practice, Chap. 5; as CPR 35.7 mentions, this presupposes that more than one party wishes to adduce expert evidence on a particular issue.
221.
I am grateful to Master John Leslie, Queen’s Bench Division, for the following insight into this practice: ‘If the parties cannot agree on a “single, joint expert”, I direct that they are to exchange the CVs of three (or some other number) experts, each party listing them in their order of preference; that they are then to send in written reasons as to why they do not accept the opponent’s proposed experts and why they say that their own are to be preferred and justifying their order of preference.’
222.
A cheaper ‘single, joint expert’ might be appointed, if the more expensive expert’s fees are disproportionate to the case’s value: Kranidotes v. Paschali [2001] EWCA Civ 357; [2001] CP Rep 81; Hodgkinson and James, Expert Evidence: Law and Practice, 4-018.
223.
Peet v. Mid-Kent Care Healthcare Trust [2002] 1 WLR 210 at [24]; ‘Protocol for the Instruction of Experts to Give Evidence in Civil Claims’ (Civil Justice Council, 2005), at 17.12.
224.
PD (35), para 2.2(6).
225.
Daniels v. Walker [2000] 1 WLR 1382, 1388 A, CA, where Lord Woolf admitted that cross-examination of a single, joint evidence is a possibility; similarly, Peet v. Mid-Kent Care Healthcare Trust [2002] 1 WLR 210, at [28], per Lord Woolf CJ.
226.
R v. R [2002] EWCA Civ 409 at [14] to [18], per Ward LJ; L. Blom-Cooper, eds., Experts in Civil Courts, 5.37 to 5.39 noting also remarks in Popel v. National Westminster Bank plc [2002] EWCA Civ 42; [2002] CPLR 370, at [28] and [29], per Dyson LJ, and Austen v. Oxfordshire County Council [2002] All D 97 (CA); 17 April 2002 (noting that it is settled law that where a single expert has been appointed, there is no general need for that expert’s evidence to be amplified by oral evidence or tested in cross-examination; but the Court of Appeal said that the court might permit cross-examination where the need arose; in the unusual circumstances of this case, cross-examination was allowed).
227.
Dwyer, ‘The Effective Management of Bias in Civil Expert Evidence,’ 57, 78.
228.
Practice reported to author by Master John Leslie, Queen’s Bench Division.
229.
[2000] 1 WLR 1382 CA; Andrews, English Civil Procedure, 32.68 to 32.74; Cosgrove v. Pattison [2001] CP Rep 68; The Times 13 February 2001, Neuberger J, on which S. Burn and B. Thompson, in Experts in Civil Courts, ed. L. Blom-Cooper (Oxford: Oxford University Press, 2006), 5.21; Neuberger J suggested eight factors; and Stallwood v. David [2006] EWHC 2600 (QB); [2007] 1 All ER 206, Teare J, at [32] (case noted A. Zuckerman, Civil Justice Quarterly 26 (2007): 159).
230.
[2002] 1 WLR 210, CA, at [28]; his Lordship emphasised that these matters of discretion are governed by the ‘Overriding Objective’ in CPR Part 1; this discretion applies to the following issues: whether to use such an expert; whether to allow further clarification of his report by written answers beyond the ‘once only’ scope of CPR 35.6(2); whether to supplement his report by appointing party-nominated experts; and whether to allow a ‘single, joint expert’ to appear and be cross-examined at trial; this discretion is emphasised at [14] of the Peet case.
231.
[2002] 1 WLR 210, CA, at [28]; his Lordship emphasised that these matters of discretion are governed by the ‘Overriding Objective’ in CPR Part 1; this discretion applies to the following issues: whether to use such an expert; whether to allow further clarification of his report by written answers beyond the ‘once only’ scope of CPR 35.6(2); whether to supplement his report by appointing party-nominated experts; and whether to allow a ‘single, joint expert’ to appear and be cross-examined at trial; this discretion is emphasised at [14] of the Peet case.
232.
‘Protocol for the Instruction of Experts to Give Evidence in Civil Claims’ (Civil Justice Council, 2005), at 17.14; this document, which does not have the force of law, ibid., at 2.1, supplements CPR Part 35 and PD 35.
233.
Brooke LJ in Armstrong v. First York Ltd [2005] 1 WLR 2751, CA; [2005] EWCA Civ 277 at [28], approving a comment in Liddell v. Middleton [1996] PIQR P36 at 43.
234.
[2005] 1 WLR 2751, CA; [2005] EWCA Civ 277.
235.
For other cases on this topic: Jakto Transport v. Derek Hall [2005] EWCA Civ 1327; Montracon v. Whalley [2005] EWCA Civ 1383; Montoya v. Hackney London Borough Council (unreported).
236.
Jolowicz, On Civil Procedure, Chap. 12; L. Cadiet et E. Jeuland, Droit Judiciare Privé (6th edn, Litec, Paris, 2009), 428 ff; Murray and Stürner, German Civil Justice, 280 ff.
237.
Law Reform Committee’s 17th Report, ‘Evidence of Opinion and Expert Evidence’ (Cmnd 4489, 1970), p. 6.
238.
Owners of the Ship Bow Spring [2005] 1 WLR 144, CA.
239.
Sir M.R. Thomas Bingham in Abbey National Mortgages plc v. Key Surveyors Ltd [1996] 1 WLR 1534, 1542, CA (a pre-CPR case concerning appointment of a court expert under the old RSC Ord 40); on the question of party expert partiality and the question of transparency, besides discussion elsewhere in this book of litigation privilege and party-appointed experts, see Edis, ‘Privilege and Immunity: Problems of Expert Evidence, 40, and Dwyer, ‘The Effective Management of Bias in Civil Expert Evidence,’ 57.
240.
Principle 22.4; accessible at: http://www.unidroit.org/english/principles/civilprocedure/main.htm. Also published as American Law Institute/UNIDROIT’s Principles of Transnational Civil Procedure (Cambridge: Cambridge University Press, 2006).
241.
Bingham, The Business of Judging, 23.
242.
Lord Woolf, Access to Justice: Final Report (London: Stationery Office, 1996), Chap. 13, at [19].
243.
CPR 35.4(2); generally on ‘court management’ of experts, Blom-Cooper, ed., Experts in Civil Courts, Chap. 4; in Morgan Chase Bank v. Springwell Navigation Corporation [2006] EWHC 2755 (Comm) Aikens J noted, at [30] to [32], that expert evidence will not be admissible from a lawyer on construction of commercial contracts (subject to English law); this is a question of law for the court; unless the parties have used technical expressions outside the expertise of the judge; e.g., Kingscroft Insurance Co Ltd v. Nissan Fire & Marine Insurance Co Ltd (No 2) [1999] Lloyd’s Insurance and Reinsurance Reports page 603 at 622, per Moore-Bick J.
244.
Vasiliou v. Hajigeorgiou [2005] EWCA Civ 236; [2005] 1 WLR 2195, CA: applying Beck v. Ministry of Defence [2003] EWCA Civ 1043; [2005] 1 WLR 2206 (note), even though in the Beck case the relevant order had not mentioned an expert by name.
245.
Vasiliou case (applying Beck case) ibid. Edwards-Tubb v. JD Weatherspoon plc [2011] EWCA Civ 136; [2011] 1 WLR 1371, at [30] to [33] extends this approach to this context: a prospective party has nominated an expert (‘X’) before commencement of proceedings, pursuant to the pre-action protocol system; that same party, after commencement of proceedings, wishes to instruct a different expert (‘Y’); the court will grant permission for expert Y to be used only on condition that the privileged report of X (not in fact relied upon, and hence not yet shown to the opponent) should be disclosed to the opponent.
246.
Vasiliou case, ibid., considering CPR 35.4(2)(a); e.g., in a recent High Court case involving very severe brain injury, assessment of the claimant’s mental capacity to conduct the litigation without Court of Protection direction was assessed by six experts: two neurologists, two neuro-psychologists, and two neuro-psychiatrists; I am grateful to Master John Leslie, Queen’s Bench Division, for this illustration.
247.
Thus CPR 35.2 provides: ‘a reference to an “expert” in this Part is a reference to an expert who has been instructed to give or prepare evidence for the purpose of court proceedings.’ Nor does the ‘Protocol for the Instruction of Experts to Give Evidence in Civil Claims’ (Civil Justice Council, 2005) cover advisory consultation with experts, for example, where a litigant obtains confidential comments from an expert on a single, joint expert’s report: ibid., at 5.2; Hodgkinson and James, Expert Evidence: Law and Practice, 4-011.
248.
Vasiliou v. Hajigeorgiou [2005] 1 WLR 2195, CA, at [20].
249.
Harmony Shipping Co SA v. Davis [1979] 1 WLR 1380, 1384–5, CA, per Lord Denning MR: ‘The reason is because the court has a right to every man’s evidence. Its primary duty is to ascertain the truth. Neither one side nor the other can debar the court from ascertaining the truth either by seeing a witness beforehand or by purchasing his evidence or by making communication with him.’
250.
CPR 35.11.
251.
On the question of ‘accreditation’ and ‘training’, Blom-Cooper, ed., Experts in Civil Courts, Chap.’s 2, 12.
252.
A party should not instruct an expert who would be unavailable at the trial, because this will cause unacceptable disruption and delay, N. Madge, in Experts in Civil Courts, ed. L. Blom-Cooper (Oxford: Oxford University Press, 2006), 4.33, noting Rollison v. Kimberly Clark [2001] EWCA Civ 1456; [2002] CP Rep 10.
253.
‘Protocol for the Instruction of Experts to Give Evidence in Civil Claims’ (Civil Justice Council, 2005), 7.1; cf Akai Holdings Limited (in compulsory liquidation) v. RSM Robson Rhodes LLP and Another [2007] EWHC 1641, Briggs J (RSM RR contractually bound to provide expert advice to applicant in pending civil litigation; in present case, interim injunction sought to restrain RSM RR, accountancy firm, from merging with applicant’s defendant (GT) in those pending proceedings; prospect of conflict of interest; injunction granted).
254.
R (Factortame Ltd) v. Secretary of State for the Environment, Transport and the Regions (No 8) [2003] QB 381, CA; [2002] EWCA Civ 932 at [54], [57], [87], [90], [91], per Lord Phillips MR; but an expert not acting as witness can validly agree a percentage return for litigation support: Mansell v. Robinson [2007] EWHC 101 (QB).
255.
Field v. Leeds City Council [2000] 1 EGLR 54 CA; R (Factortame Ltd) v. Secretary of State for the Environment, Transport and the Regions (No 8) [2003] QB 381, CA; [2002] EWCA Civ 932, at [70]; on which, Andrews, English Civil Procedure, 32.43 to 32.45; Hodgkinson and James, Expert Evidence: Law and Practice, 1-030 and Dwyer, ‘The Effective Management of Bias in Civil Expert Evidence,’ 57.
256.
CPR 35.5; generally on expert reports, Blom-Cooper, ed., Experts in Civil Courts, Chap. 6.
257.
CPR 35.13.
258.
CPR 35.10 and PD (35) 2.2; ‘Protocol for the Instruction of Experts to Give Evidence in Civil Claims’ (Civil Justice Council, 2005), at 13.
259.
PD (35), 2.2(1) for the latter requirement.
260.
The need for such delineation of his legitimate field of comment is made clear in: (1) section 3(1), Civil Evidence Act 1972 (‘…where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence’); and (2) CPR 35.3.1, referring to an expert’s evidence on: ‘…matters within his expertise’.
261.
PD (35) 1.5(a); for such a failure in the criminal context, see Meadow v. General Medical Council [2006] EWCA Civ 1390; [2007] QB 462, discussed below.
262.
PD (35) 2.2(2).
263.
Ibid., 2.2(6).
264.
Ibid., 2.2(8).
265.
CPR 35.10(2).
266.
PD (35) 3.3.
267.
‘Protocol for the Instruction of Experts to Give Evidence in Civil Claims’ (Civil Justice Council, 2005), 15.2.
268.
Normally the exchange is simultaneous; but fairness and clarity might sometimes justify sequential disclosure: Hodgkinson and James, Expert Evidence: Law and Practice, 4-020.
269.
Jackson v. Marley Davenport Ltd [2004] 1 WLR 2926, CA, at [14] and [18]; Longmore LJ commented at [18]: ‘…it would in my view be a retrogression and not an advance in our law if earlier reports of experts, upon which they did not intend to rely, had to be routinely disclosed before they could give evidence.’
270.
See PD (35) 5.1 to 5.3.
271.
CPR 35.6(3).
272.
CPR 35.10(3).
273.
Lucas v. Barking, Havering and Redbridge Hospitals NHS Trust [2003] EWCA Civ 1102; [2004] 1 WLR 220, at [34].
274.
Ibid., at [36], per Waller LJ.
275.
Morris v. Bank of India (unreported, 15 Nov 2001, Chancery), Hart J; on which Andrews, English Civil Procedure, 32.51 to 31.56; and comments in Lucas v. Barking, Havering and Redbridge Hospitals NHS Trust [2003] EWCA Civ 1102; [2004] 1 WLR 220, at [8].
276.
See, for example, Carlson v. Townsend [2001] 1 WLR 2415, CA; Jackson v. Marley Davenport Ltd [2004] 1 WLR 2926, CA, at [13], [14], [22], cited in Vasiliou v. Hajigeorgiou [2005] 1 WLR 2195, CA, at [28].
277.
On this last element, USA v. Philip Morris [2004] EWCA Civ 330.
278.
Kuwait Airways Corpn v. Iraqi Airways Corp [2005] EWCA Civ 286; [2005] 1 WLR 2734, at [42], where Longmore LJ concluded: ‘the fraud exception can apply where there is a claim to litigation privilege as much as where there is a claim to legal advice privilege’. In the Kuwait case, the defendant had committed perjury ‘on a remarkable and unprecedented scale’ (see [40]) and there was clear evidence of this; this destroyed litigation privilege in communications between the claimant and its solicitors.
279.
The David Agmashenebeli (2001) CLC 942, Colman J: strong prima facie evidence that claimants had procured a surveyor’s report in order to present false evidence: Thanki, ed., The Law of Privilege, 4.45.
280.
ISTIL Group Inc v. Zahoor [2003] EWHC 165 (Ch), [2003] 2 All ER 252, at [112], per Lawrence Collins J: ‘In my judgment the combination of forgery and misleading evidence make this a case where the equitable jurisdiction to restrain breach of confidence gives way to the public interest in the proper administration of justice.’
281.
CPR 35.10(4).
282.
Jackson v. Marley Davenport Ltd [2004] 1 WLR 2926, CA, at [22], per Peter Gibson LJ; Edis, ‘Privilege and Immunity: Problems of Expert Evidence,’ 40.
283.
CPR 35.12; Blom-Cooper, ed., Experts in Civil Courts, Chap. 7.
1. (1)
  CPR 35.12 states: The court may, at any stage, direct a discussion between experts for the purpose of requiring the experts to—(a) identify and discuss the expert issues in the proceedings; and (b) where possible, reach an agreed opinion on those issues.(2) The court may specify the issues which the experts must discuss. (3) The court may direct that following a discussion between the experts they must prepare a statement for the court setting out those issues on which—(a) they agree; and (b) they disagree, with a summary of their reasons for disagreeing. (4) The content of the discussion between the experts shall not be referred to at the trial unless the parties agree. (5) Where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement.
2. (2)
  Practice Direction (35) states: 9.1 Unless directed by the court discussions between experts are not mandatory. Parties must consider, with their experts, at an early stage, whether there is likely to be any useful purpose in holding an experts’ discussion and if so when. 9.2 The purpose of discussions between experts is not for experts to settle cases but to agree and narrow issues and in particular to identify: (i) the extent of the agreement between them; (ii) the points of and short reasons for any disagreement; (iii) action, if any, which may be taken to resolve any outstanding points of disagreement; and (iv) any further material issues not raised and the extent to which these issues are agreed. 9.3 Where the experts are to meet, the parties must discuss and if possible agree whether an agenda is necessary, and if so attempt to agree one that helps the experts to focus on the issues which need to be discussed. The agenda must not be in the form of leading questions or hostile in tone. 9.4 Unless ordered by the court, or agreed by all parties, and the experts, neither the parties nor their legal representatives may attend experts discussions. 9.5 If the legal representatives do attend—(i) they should not normally intervene in the discussion, except to answer questions put to them by the experts or to advise on the law; and (ii) the experts may if they so wish hold part of their discussions in the absence of the legal representatives.9.6 A statement must be prepared by the experts dealing with paragraphs 9.2(i)–(iv) above. Individual copies of the statements must be signed by the experts at the conclusion of the discussion, or as soon thereafter as practicable, and in any event within 7 days. Copies of the statements must be provided to the parties no later than 14 days after signing.9.7 Experts must give their own opinions to assist the court and do not require the authority of the parties to sign a joint statement.9.8 If an expert significantly alters an opinion, the joint statement must include a note or addendum by that expert explaining the change of opinion.
284.
CPR 35.12(3).
285.
Hubbard v. Lambeth, Southwark and Lewisham AHA [2001] EWCA Civ 1455; The Times, 8 October 2001, at [17], per Tuckey LJ.
286.
Hubbard case, ibid., at [29], per Hale LJ.
287.
PD 35, para 9.1.
288.
PD 35, para 9.4.
289.
PD 35, para 9.5.
290.
PD 35, para 9.7.
291.
PD 35, para 9.8.
292.
CPR 35.12(4).
293.
Aird v. Prime Meridian Ltd [2006] EWCA Civ 1866, at [3].
294.
[2011] UKSC 13; [2011] 2 WLR 823.
295.
[2000] 1 QB 75, CA.
296.
[2011] UKSC 13; [2011] 2 WLR 823.
297.
[2000] 1 QB 75, CA; the expert discussion in that case preceded the CPR and was not at the court’s direction; nevertheless, the court’s reasoning would seem to apply to CPR 35.12 discussions.
298.
[2011] UKSC 13; [2011] 2 WLR 823.
299.
Ibid.
300.
Paragraph 5 of the joint report was damaging to the claimant: ‘Dr Kaney [the eventual defendant in the negligence action] has found Mr Wynne Jones [the victim of the road traffic accident and the claimant in the action against Dr Kaney in the tort claim for compensation] to be very deceptive and deceitful in his reporting. He denied any previous psychological trouble or past accidents, which is inconsistent with the records or other reports. Despite enquiry he did not report to her the other road traffic accident of 28.02.2001. We therefore agree that such inconsistencies would be suggestive of conscious mechanisms and would raise doubts of whether his subjective reporting was genuine.’
301.
[2000] 1 QB 75, CA.
302.
[2011] UKSC 13; [2011] 2 WLR 823.
303.
Ibid.
304.
Mark Solon (2011) New Law Journal 601.
305.
[2011] UKSC 13; [2011] 2 WLR 823.
306.
Ibid.
307.
[2006] EWCA Civ 1390; [2007] QB 462, reversing on the immunity point Collins J in [2006] EWHC 146 (Admin); on the general question of remedies against the defaulting expert, Blom-Cooper, ed., Experts in Civil Courts, Chap. 9 and Dwyer, ‘The Effective Management of Bias in Civil Expert Evidence,’ 57.
308.
[2006] EWCA Civ 1390; [2007] QB 462, at [46]; the other members agreed, at [106] and [249].
309.
[2011] UKSC 13; [2011] 2 WLR 823.
310.
[2004] EWHC 2330 (Ch); [2005] 1 WLR 2043; noted Neil Andrews [2005] Cambridge Law Journal 566.
311.
Jones v. Kaney [2011] UKSC 13; [2011] 2 WLR 823 has abolished immunity for civil liability towards the instructing party (see 3.82); on factual witness immunity, Arthur JS Hall v. Simons [2000] UKHL 38; [2002] 1 AC 615; Taylor v. Director of the Serious Fraud Office [1999] 2 AC 177, HL; Darker v. Chief Constable of the West Midlands Police [2000] UKHL 44; [2001] 1 AC 435.
312.
For example, Re Colt Telecom Group plc [2002] EWHC 2815 (Ch), at [80] and [110], where Jacob J ordered indemnity costs against a party who selected an expert whose report was seriously defective.
313.
[2006] EWHC 2600 (QB); [2007] 1 All ER 206; noted A. Zuckerman, Civil Justice Quarterly 26 (2007): 159.
314.
[2011] UKSC 13; [2011] 2 WLR 823.
315.
[2000] UKHL 38; [2002] 1 AC 615, 697; Edis, ‘Privilege and Immunity: Problems of Expert Evidence,’ 40; on the scope of the immunity in the context of an affidavit, Martin Walsh v. Paul Staines [2007] EWHC 1814 (Ch).
316.
[2011] UKSC 13; [2011] 2 WLR 823.
317.
[2001] 1 AC 435, HL; similarly, L (A Child) v. Reading BC [2001] EWCA Civ 346; [2001] 1 WLR 1575, 1593, CA.
318.
Fiddes v. Channel Four Television Corpn [2010] EWCA Civ 730; [2010] 1 WLR 2245 (volume of video footage rendering trial by jury inappropriate)
319.
Andrews, English Civil Procedure, 34-06 ff.
320.
Jury trial in England is now confined to serious criminal cases (for example, murder, rape, armed robbery) and civil actions for defamation or misconduct by the police (the torts of defamation, malicious prosecution, and false imprisonment): Andrews, English Civil Procedure, 34-06 ff; as long ago as 1966, it became clear that the courts will unwilling to back-track on the modern trend to confine jury trial to these special categories of claim, Ward v. James [1966] 1 QB 273, CA (applied H v. Ministry of Defence [1991] 2 QB 103, CA; Heil v. Rankin [2001] QB 272, CA, at [25]); for the constitutional guarantee of jury trial in most civil claims in the USA, see G. Hazard and M. Taruffo, American Civil Procedure (New Haven, CT: Yale University Press, 1993), 128 ff.
321.
PD (39) 3.2.
322.
The notice requirement is strict: CPR 33.6(3).
323.
PD (39) 3.6.
324.
A. Hajducki, Civil Jury Trials (2nd edn, Edinburgh: Avizandum, 2006).
325.
Three Rivers DC v. Bank of England [2005] EWCA Civ 933; [2005] CP Rep 47.
326.
For exceptions, CPR 39.2(1), CPR 39.2(3), and PD (39) 1.5; the primary source is Senior Courts Act 1981, s 67; J. Jaconelli, Open Justice (Oxford University Press, 2002); J. Jacob, Civil Justice in the Age of Human Rights (Aldershot: Ashgate, 2007), Chap. 2; on the question of exceptional restrictions on publicity in respect of pre-trial hearings and judgments concerning interim decisions, Browne v. Associated Newspapers Ltd [2007] EWCA Civ 295; [2008] QB 103 at [2] to [5].
327.
But the physical frailty of a witness was not a sufficient reason in Three Rivers DC v. Bank of England [2005] EWCA Civ 933; [2005] CP Rep 47.
328.
CPR 39.2(4); PD (39) 1.4A emphasises the need to consider the requirement of publicity enshrined in Art 6(1) of the European Convention on Human Rights (incorporated into English law, Human Rights Act 1998, Sch 1).
329.
Polanski v. Condé Nast Publications Ltd [2005] UKHL 10; [2005] 1 WLR 637; McGlinn v. Waltham Contractors Ltd [2006] EWHC 2322 (TCC); in neither case was the relevant absentee’s reason for not coming to England held to bar use of video-linking (respectively, avoidance of extradition to the USA, and avoidance of tax liability within the UK).
330.
Fast-track: PD (28) 8.2; multi-track: PD (29) 10.2; detailed account: Andrews, English Civil Procedure, 31.21 to 31.24.
331.
CPR 32.5(2).
332.
In Graham v. Chorley Borough Council [2006] EWCA Civ 92; [2006] CP Rep 24, at [29] ff, Brooke LJ explained (noting Benham Ltd v. Kythira Investments Ltd [2003] EWCA Civ 1794 at [32], [36]) that a ‘no case to answer’ judgment for the defendant without hearing the defendant’s evidence is highly perilous (e.g., in the Graham case, the judge’s decision in favour of the claimant was set aside and a re-trial ordered); cross-examination of the defendant’s witnesses might have strengthened the claimant’s exiguous case; before reaching ‘the no case to answer’ decision, the judge must give appropriate weight to the fact that the defendant elected not to call his own witnesses (drawing ‘adverse inferences’).
333.
Or a direction to the jury; on judgments, CPR 40 and PD (40); on the court’s discretion whether to complete the giving of judgment once it has begun to deliver it (or after it has delivered it in draft form) Prudential Assurance Co v. McBains [2000] 1 WLR 2000, CA; on the court’s power to re-open a case before perfecting a judgment, Stewart v. Engel [2000] 1 WLR 2268, CA.
334.
CPR 44.3, 44.7(a).
335.
Braspetro Oil Services Co v. FPSO Construction Inc [2007] EWHC 1359 (Comm), Cresswell J observing at [32] and [33]: ‘In view of [the defendant’s] non-attendance at the trial, the Court has adopted an approach which reflects the approach followed, for example, in Habib Bank Ltd v. Central Bank of Sudan [2006] EWHC 1767 (Comm); [2006] 2 Lloyd’s Rep 412. I have required [the claimant] to draw to the Court’s attention points, factual or legal, that might be to the benefit of [the defendant]. I am satisfied that [the claimant’s lawyers] have complied with this direction throughout the hearing.’
336.
Khader v. Aziz [2010] EWCA 716; 2010] 1 WLR 2673.
337.
Andrews, English Civil Procedure, 31.41 to 31.51.
338.
This phrase replaces the terms ‘subpoena ad testificandum’ (order to attend to give oral evidence) and ‘subpoena duces tecum’ (order to attend with relevant documents or other items): CPR 34.2.
339.
CPR 34.7; PD (34) 3, referring to provisions applicable also to compensation for loss of time in criminal proceedings.
340.
CPR 32.10.
341.
CPR 22.1(1)(c), 22.3.
342.
CPR 32.14.
343.
CPR 32.5(2)(3)(4).
344.
On affirmations, PD (32) 16.
345.
Southwark London Borough Council v. Kofi-Adu [2006] EWCA Civ 281; [2006] HLR 33, at [148].
346.
CPR 32.1(1); GKR Karate (UK) Ltd v. Yorkshire Post Newspapers Ltd [2000] 2 All ER 931, CA.
347.
CPR 32.1(2)(3); Grobbelaar v. Sun Newspapers Ltd The Times 12 August, 1999, CA (prolix defence in libel action); Three Rivers DC v. Bank of England [2005] EWCA Civ 889; [2005] CP Rep 46 (upholding the Commercial Court judge’s humane restriction in a long-running trial).
348.
Fast-track: CPR 28.3(1) and PD (28) 8.4; CPR 32.1 (all tracks).
349.
A. Colman (with V. Lyon and P. Hopkins), The Practice and Procedure of the Commercial Court (5th edn, London: Lloyd’s of London Press, 2000), 218–9, especially curtailment of the power to cross-examine the other party’s witnesses; S. Sugar and R. Wilson, eds., Commercial and Mercantile Courts Litigation Practice.
350.
CPR 3.1(2)(j)(l); for the pre-CPR emergence of this aspect of trial management, Ashmore v. Corporation of Lloyd’s [1992] 1 WLR 446, HL; Thermawear Ltd v. Linton The Times 20 October, 1995, CA.
351.
Ward v. Guinness Mahon plc [1996] 1 WLR 894, CA, Grupo Torras Sa v. Al Sabah (No 2) The Times 17 April, 1997, CA.
352.
On the historical influence of trial by judge and jury, Andrews, English Civil Procedure, 34-06 ff; the jury no longer sits in English civil trials except in actions for defamation, or in claims of false imprisonment or malicious prosecution; see ibid. for details.
353.
Rule 25 in American Law Institute/UNIDROIT’s Principles of Transnational Civil Procedure (Cambridge: Cambridge University Press, 2006), 137 ff.
354.
Civil Evidence Act 1995, s 1.
355.
Ibid., 1995 Act, s 4; in Polanski v. Condé Nast Publications Ltd [2005] UKHL 10; [2005] 1 WLR 637, at [36], Lord Nicholls said: ‘The principle underlying the Civil Evidence Act 1995 is that in general the preferable course is to admit hearsay evidence, and let the court attach to the evidence whatever weight may be appropriate, rather than exclude it altogether. This applies to jury trial [in civil cases] as well as trials by judge alone….’; S. Salako, ‘The Hearsay Rule and the Civil Evidence Act 1995: Where are we Now?’ Civil Justice Quarterly 19 (2000): 371.
356.
In Springsteen v. Masquerade Music Ltd [2001] EWCA Civ 513; [2001] Entertainment and Media LR 654, CA, Jonathan Parker LJ explained: ‘the time has now come when it can be said with confidence that the best evidence rule, long on its deathbed, has finally expired. In every case where a party seeks to adduce secondary evidence of the contents of a document, it is a matter for the court to decide, in the light of all the circumstances of the case, what (if any) weight to attach to that evidence.’
357.
O’Brien v. Chief Constable of South Wales Police [2005] UKHL 26; [2005] 2 AC 534.
358.
[2003] EWCA Civ 151; [2003] 1 WLR 954, CA.
359.
This involved a tort (trespass) and an invasion of privacy (as recognised by Article 8 of the European Convention on Human Rights).

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Andrews, N. (2012). First Instance Proceedings. In: The Three Paths of Justice. Ius Gentium: Comparative Perspectives on Law and Justice, vol 10. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-2294-1_3

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