29 February 1996

Times Law Reports

Court of Appeal

Society of Lloyd's v Clementson

Before Lord Justice Staughton, Lord Justice Henry and Lord Justice Pill

(Judgment February 21)

Witness - expert - discretion of court to compel appearance

Factors excusing expert witness from court

The court had a discretion whether to compel an expert to appear against his wishes as a witness and could take into account whether attendance at court would disrupt or impede other important work that the expert had to do.

The Court of Appeal so held, allowing an interlocutory appeal by the plaintiffs, the Society of Lloyd's, against an order of Mr Justice Cresswell in the Queen's Bench Commercial Court on February 14, 1996 and setting aside a subpoena served on the Chairman of Lloyd's, Mr David Rowland, by the defendant, Mr John Stewart Clementson, an underwriting member of Lloyd's, in an action to recover sums paid from Lloyd's central fund to discharge the defendant's underwriting liabilities.

Mr Gordon Pollock, QC and Mr Richard Jacobs for Lloyd's; Mr Jeremy Lever, QC and Mr Richard Slowe, solicitor, for Mr Clementson.

LORD JUSTICE STAUGHTON

said that the court had a discretion whether to compel an expert to appear as a witness. It would take into account (i) that a court was prima facie entitled to every man's evidence, whether of fact or opinion, (ii) whether the expert had some connection with the case in question, (iii) whether he was willing to come, provided that his image was protected by the issue of a subpoena, (iv) whether attendance at court would disrupt or impede other important work that he had to do, and (v) whether another expert of equal calibre was available.

There might well be other relevant considerations. In particular, it was arguable that an officer or employee of one party should not be called by the other unless that was necessary for justice to be done.

In his Lordship's judgment, Mr Rowland was being asked to give evidence as an expert and he could give relevant evidence. However, his Lordship could not accept that there was no other means for the defendant to obtain expert evidence.

No doubt some people, perhaps many, who knew about the workings of the market would not be keen to give evidence against Lloyd's. Perhaps quite a number of other experts would be required to cover the ground, rather than one if it was only Mr Rowland. But his Lordship was not satisfied that there was no other source.

There was also a powerful point that Mr Rowland held an important office and was a very busy man, whose task it was to produce a solution to the problems of Lloyd's.

He should not be required to spend days in court giving evidence, not to mention preparation time, unless that was essential. No doubt the judge would treat him with consideration and try to confine his evidence; but who knew if he would be successful?

Lord Justice Henry and Lord Justice Pill gave concurring judgments.

Solicitors: Freshfields; S J Berwin & Co.