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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Claims Direct Test Cases [2002] EWCA Civ 333 (4 March 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/333.html Cite as: [2002] EWCA Civ 333

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
SUPREME COURT COSTS OFFICE
(Master Hurst)

		Royal Courts of Justice Strand London WC2 Monday 4th March, 2002

1. LORD JUSTICE MAY: This is a renewed application on behalf of appellants for a stay of the directions, or part of them, which are the subject matter of the appeal. These are costs proceedings representative of a very large number of cases in the country as a whole. They arise out of the business of Claims Direct, although Claims Direct is not in literal terms a party to the proceedings. It appears to be evident that they are, however, running the proceedings.
2. Master Hurst is conducting cost proceedings which raise a large number of issues. In the simplest possible terms, one (but I emphasise only one) of the main issues concerns the question whether a standard payment of £1,312.50 paid by claimants to Claims Direct is or is not to be regarded in whole or in part as an insurance premium for the purposes of recovery of costs. The claimants say that it is. The respondents say that it is not; or, if it is, only £100 or so of it is properly to be regarded as an insurance premium. That is an issue of wide commercial significance. There are lots of other issues which no doubt are also of importance.
3. In these costs proceedings Master Hurst made a case management order back in November 2001. The case management order was amended in January 2002. It included a definition of tranches of issues, the first such tranche being fixed for hearing before Master Hurst on 9th April, the first day of next term, and the time estimate which Master Hurst has set aside for that hearing is as much as 10 days.
4. In addition, Master Hurst ordered disclosure of documents and disclosure of witness statements. If Master Hurst's order had been complied with - that is to say the January version of the order - that would have meant witness statements being exchanged on 28th January and disclosure by 15th February. Those directed events have not taken place because the claimants have applied for permission to appeal against some of Master Hurst's directions. In particular they want to appeal the directions as to the issues that he should determine in the hearing to start on 9th April. The claimants wish those issues to be reduced, and if they are reduced, they say that the scope of disclosure and the necessity for witness statements will be much reduced.
5. In addition, they say that there are commercially sensitive documents which they would not wish to disclose unless the litigation obliges them to disclose them.
6. The application for permission to appeal came before me on paper. I adjourned the application to be heard by the full court with the appeal to follow immediately if permission is granted. The hearing of that application (and if permission is granted the subsequent appeal) is to take place before the court presided over by the Master of the Rolls, specially convened in quick order for that purpose, on 18th and 19th March.
7. Mr Neish, on behalf of the second respondents, points out correctly that a feature of the application to stay is that the claimants have not complied with Master Hurst's order. Mr Hutton and Mr Williams, on behalf of the first and third respondents, tell me - and although Mr Neish has not told me in terms, I have no doubt it applies to him - that the respondents have not themselves complied with the order, the claimants not having done so, but are in a position to do so immediately.
8. Accordingly there is, as I think everybody recognises, a dilemma. I think it is evident that there has been a lot of forensic warfare going on between these parties. But when the matter came before me last week on a without notice application by Mr Norris QC, I encouraged the parties to co-operate, and I am quite sure that there has at least in this respect been a good deal of co-operation. I sincerely hope that this co-operation will continue, but that is an aside to the decision that I have to make today.
9. The difficulty is this. On the one hand it may well be that the claimants succeed before the full court. I simply articulate that as a possibility because that is what they are trying to do. It is not an expression of my view of the merits of the appeal, as to which I say nothing. If they do succeed then, no doubt, disclosure and the need for witness statements will be reduced and, in theory at least, the cost of achieving those two things would be wasted if the disclosure and the exchange of witness statements were to take place. In addition, I understand, and Mr Neish explicitly respects, the commercial wish not to have to disclose commercially sensitive material.
10. On the other hand, if disclosure and the exchange of witness statements does not take place until after the decision of the Court of Appeal in the middle or towards the end almost of this month, then the hearing fixed before Master Hurst on 9th April is going to be difficult to maintain. I am pleased to hear that all participants, both sides, wish to retain that hearing, and the negotiations which my intervention last week initiated have reached some degree of accommodation.
11. The accommodation is not complete, and the one point, with which I have considerable sympathy, that Mr Neish makes in a number of ways, but I think it is one point, is that the defendants wish not to be in the position where on 20th, 21st or 22nd March they are faced with an unheralded avalanche, as he put it, of documents and witness statements. That might on the one hand generate further disagreement as to its adequacy, and on the other hand might make it extremely difficult for the respondents to do all that is necessary with this lately arrived material to be fairly ready for the hearing on 9th April.
12. It is of course entirely unknown whether the application, and if application is granted appeal, to the full court will succeed or fail. But the parties, at any rate by their silence, appear to accept that if the Claims Direct side succeeds in the Court of Appeal, a hearing before Master Hurst can take place on 9th April without too much trouble. It is if they fail before the full court that Mr Neish is concerned, and I think rightly concerned, that time may be too short to do all that is necessary and fair in advance of 9th April.
13. Mr Norris, on behalf of the claimants, has offered terms upon which they ask for their stay. The terms include, effectively, immediate compliance with the order after the decision of the Court of Appeal is announced, whatever its result. He offers also some information by way of disclosure and some information about witnesses before the decision of the Court of Appeal.
14. Mr Neish's position is essentially that, although in absolute terms he opposes the application, that if it is to be granted in any form he wishes to improve on that. The main improvement which he suggests is that, in advance of the Court of Appeal decision, the claimants should nevertheless disclose a list of the documents which they would be disclosing if they lost before the Court of Appeal, but with an order that they should not be inspected and that their contents should not be disclosed until the Court of Appeal's decision is known. No doubt, if they then cease to be disclosable, the list would be withdrawn. He suggests that this would be a positive advantage all round, because the list would enable the respondents to know whether there was or was not in their eyes a major battle to be had about the extent of disclosure. He suggests that if that were the case something could be done about it by way of application to Master Hurst, even before the Court of Appeal has given its decision.
15. There also appears to have been some coming and going about the number and identity of witnesses that would be called if the Court of Appeal's decision goes against Claims Direct. It now appears to be the case that not only would Mr Rainscroft be called, but a number of other witnesses whose identity, absent an order of the court, Mr Norris is not instructed to disclose.
16. As I say, all parties want to maintain the date of 9th April before Master Hurst. I proceed on the basis that there is going to be a hearing before Master Hurst in any event, whatever the decision of the Court of Appeal. I do not think that Mr Neish's additional requirement as to the disclosure by list of the documents in advance of the decision of the Court of Appeal will work pragmatically. It would be a strange and novel order to make. I would not be put off by that if I thought it would work and work in favour of justice. But I am afraid to say that on a purely pragmatic basis I do not think it will work because I do not think that the parties' co-operation is likely to extend to negotiating about documents whose content one party is unable at that stage to know. I do not think that Master Hurst or any other judge is going readily to be able to resolve hypothetical disputes, part of the content of which is not before the court. Indeed, I would go as far as to believe that, though I entirely accept that Mr Neish puts this forward as a practical suggestion to help things forward, I go as far as to suggest that an order in those terms might actually generate further heat and not much light.
17. Accordingly, I do not propose to attach that additional order to what is offered.
18. The question therefore I think boils down to whether what is offered by Mr Norris should be accepted, or whether it should be refused and the application should simply be refused. I have reached the conclusion that the just position is essentially to stay the order of Master Hurst in the respects requested and subject to the terms offered. In so far as I do not modify those terms, I do that because it seems to me that an element of co-operation in the form of what is actually offered is a really rather desirable thing to inject into this litigation. Put it another way, it seems to me that if the court orders what is offered, there is a much better chance of that actually being achieved and the hearing of 9th April actually taking place - this is on the hypothesis that Claims Direct lose in the Court of Appeal - than if I inject an element of court-directed compulsion into the situation.
19. Accordingly, my basic decision is to grant the stay on the terms which I will now set out, and I trust this will be in a form that can be put into an order.
20. MR NORRIS: My Lord, can I just - I am sorry to interrupt you. Do you mind if leave Mr Bacon to deal with anything that may help in the terms. I am in the middle of the another witness. I know I am doing a great discourtesy to leave your Lordship's court, but I----
21. LORD JUSTICE MAY: You have my entire permission, and if I may say sympathy, and please apologise to whoever the judge is that you are----
22. MR NORRIS: They are completely understanding, but I have been a little longer than I promised. No doubt my own fault. Do you mind?
23. LORD JUSTICE MAY: Not at all.
24. MR NORRIS: Thank you very much indeed.
25. LORD JUSTICE MAY: There will be a stay of Master Hurst's disclosure and witness statement order until the hearing by the full court on 18th/19th March, or until further order, on the following terms, that the claimant's undertake as follows:
26. First, that within 48 hours of the Court of Appeal's decision, they will comply with Master Hurst's order for disclosure and witness statements to whatever extent the Court of Appeal's decision makes necessary. In that undertaking, "the Court of Appeal's decision" means the announcement of the substantive result and not a reasoned judgment, if the reasoned judgment comes subsequently. Thereafter, inspection of the documents so disclosed to be made available from 9am on the morning after lists are provided, excluding only Sundays from that order. "48 hours after the Court of Appeal's decision" means the day after the day on which the decision is given. So that if, for example, the decision is given at 5pm on Tuesday the 19th, the undertaking takes effect before close of business on Thursday the 21st.
27. Secondly, the claimants undertake by 13th March to disclose by list documents and to identify witnesses which they intend to call, upon the hypothesis that they succeed in the Court of Appeal. I canvassed the possibility of ordering that the witness statements should be disclosed. I am persuaded that that should not in the event take place, since no doubt witness statements would be different, if only to be additional, if the claimants lose in the Court of Appeal.
28. Thirdly, the claimants undertake to deal by letter with the amended points of dispute, which start on page 46 of the bundle, stating in the letter which issues they admit and which they do not admit. They further undertake to serve amended points of reply, again within 48 hours of the Court of Appeal's decision.
29. Counsel will tell me in a minute if there are any other matters than that which I about to allude to which this order should include. But I think it is only right to acknowledge that the effect of that order does leave the respondents in the dark as to the quantity of material which if they, the respondents, win in the Court of Appeal and Claims Direct lose will materialise in the week towards the end of the week of 18th March.
30. It does not seem to me to be an absolute that if and when that takes place the respondents ought fairly and in any circumstance to be held to the date of 9th April. Although of course, as I have already said, that is what they want to do. In those circumstances, I simply say that I acknowledge - and no doubt they will take on board - that in those circumstances they have liberty to apply to Master Hurst in that matter. I emphasise that I am not going any way to encourage them to do so, and who knows what the position may be on 20th or 21st March. But I am simply acknowledging that the effect of the order which I am in the process of making could give rise to a situation where it would be unfair not to have that consideration given to the respondents' position. As I say, I sincerely hope it will not take place and the intention of what I have said is quite the contrary: that is to say, to do all that the court reasonably can to maintain that hearing.
ORDER: Application for a stay of execution pending the hearing before the full court allowed upon the terms as indicated in the judgment; costs of this application, including Mr Norris' attendance last week, to be in the discretion of the full court. (Order not part of approved judgment)