WAKEFIELD v OUTHWAITE

QUEEN’s BENCH DIVISION (COMMERCIAL COURT)

[1990] 2 Lloyd’s Rep 157

HEARING-DATES:  1 May 1990

1 May 1990

CATCHWORDS:

Practice — Writ of subpoena — Application to vary — Plaintiff required to produce certain documents — Whether subpoena should specify precisely particular document required to be produced — Whether subpoena offensive and oppressive — Whether application to vary subpoena should begranted.

HEADNOTE:

The plaintiff was an officer of Winchester Bowring Ltd (Winchester Bowring) who were the parties concerned as brokers to syndicate 33 at Lloyd’s (the Hiscox Syndicate) in relation to matters which were the subject of an arbitration between the Hiscox Syndicate and the defendant’s syndicate.

The Hiscox Syndicate’s claim was one of a number of claims by insurers against the defendant’s syndicate as reinsurers of 100 per cent or in the case of the Dolling Baker Syndicate of 50 per cent of a number of aggregate excess of loss reinsurance agreements.

The point which had arisen was whether or not the Hiscox Syndicate could recover various sums paid in the United States pursuant to its participation in a market settlement called the Wellington Facility, an arrangement made between various insurers to achieve co-operation and unity of approach in disposing of the large number of asbestosis claims made against insurers in the United States.

The defendant contended that the terms of the reinsurance agreement did not entitle the Hiscox Syndicate to an indemnity for those sums since they were paid into a pool administered under the broad terms of the facility whereby the contributions of subscribers were apportioned among the claims of the insurers on such a basis that Hiscox could not readily prove that their payments had been paid or applied in actual settlement of claims for which Hiscox as opposed to other insurers were liable.

Hiscox contended that that point was not open to the defendant and relied on a Note dated July 2, 1984 signed on behalf of the defendant’s syndicate in which the defendant gave blanket approval for Hiscox to enter into the Wellington Facility Agreement without prejudice to their rights of indemnity by the defendant syndicate as a means of settling the United States claims.

The defendant obtained a writ of subpoena duces tecum directed to the plaintiff and requiring him to attend throughout the arbitration and to produce at the arbitration the original file in which the document dated July 2, 1984 (the Note) was filed and the files regarding the run-off contract placed by Winchester Bowring for the Dolling Baker Syndicate policy.

The plaintiff applied to vary the writ on the grounds that the form and content of the writ offended the principle and the various well established authorities to the effect that a subpoena should not be used as an instrument to obtain discovery and/or should specify precisely the particular documents or document required to be produced and that in the context of that principle the subpoena was offensive and oppressive.

—Held, by QB (Com Ct) (POTTER J), that (1) the subpoena was not one which on its face called on Wincheter Bowring to perform an exercise of discovery since the purpose and intention of the subpoena could be characterized as requiring the production of documents in aid of the testimony of a witness; however all that was sought by way of specific documents required as evidence in the arbitration was the note itself and a copy of the note which there was no firm reason to suppose existed; and there was nothing in the authorities which suggested that it was a legitimate exercise to call for the rest of the files or documents when it was not asserted that the contents or at least the bulk of contents consisted of individually relevant documents.

—Lee v Angas, (1866) LR 2 Eq 59, and Fairchild v MacFarlane, [1891] 2 QB 241, considered;

(2) the subpoena was far too wide in its terms; it was based on a wholly speculative premise in that by calling for the files it called for production of a large number of individual documents, which it acknowledged had nothing to do with the case in the hope of eliciting material for cross-examination of a witness, when no good reason had been demonstrated for supposing such material existed; it went beyond the basic purpose of a subpoena and it was oppressive in the circumstances of this case to require the production of the files covered by the form of the subpoena for the pursuit of a questionable benefit in terms of probative value;

(3) the terms of the subpoena would be varied to a form in which it was addressed to Winchester Bowring, to attend by its proper officer and so as to require only the production of the original note; the requirement of attendance by the proper officer throughout the hearing of the arbitration would be deleted.

— The Lorenzo Halcoussi, [1988] 1 Lloyd’s Rep 180, considered.

CASES-REF-TO:

Asbestos Insurance, Re (HL) [1985] 1 WLR 331;

Elder v Carter, (1890) 25 QB 194;

Fairchild v MacFarlane, [1891] 2 QB 241;

Lee v Angas, (1866) LR 2 Eq 59;

Lorenzo Halcoussi, The [1988] 1 Lloyd’s Rep 180;

Penn Texas Corporation v Murat Anstatt No 2, (CA) [1964] 2 QB 647;

Rio Tinto Zinc Corporation v Westinghouse Electric Corporation (HL) [1978] AC 547.

INTRODUCTION:

This was an originating application by the plaintiff Mr GHC Wakefield, an officer of Winchester Bowring Ltd, against the defendant Mr RHM Outhwaite sued on behalf of himself and Syndicate 661 at Lloyd’s that the writ of subpoena duces tecum directed to the plaintiff be varied. The further facts are stated in the judgment of Mr Justice Potter. Judgment was delivered in open Court.

COUNSEL:

Mr Stephen Tomlinson, QC, Mr G Geary for the plaintiff; Mr Kenneth Rokison QC, Mr Christopher Butcher for the defendant.

PANEL: POTTER J

JUDGMENTBY-1: POTTER J

JUDGMENT-1:

POTTER J: I give judgment in open Court on this matter, heard in Chambers, because it has been suggested to me by the parties that it may be of general interest in relation to the practice concerning the issue and form of subpoena duces tecum.

This is an originating application by the plaintiff, Mr Wakefield, against the defendant, Mr Outhwaite, sued on behalf of himself and Syndicate 661 at Lloyd’s. It is stated to be an application to vary a writ of subpoena duces tecum directed to the plaintiff, issued out of the Admiralty and Commercial Registry on Mar 15, 1990, pursuant to s 12(4) of the Arbitration Act, 1950 and requring him to attend throughout an arbitration between Robert Hiscox of Syndicate 33 at Lloyd’s and the defendants’ syndicate, currently taking place before Mr Robert MacCrindle QC. The subpoena also directs the plaintiff to produce at the arbitration first the —

. . . original file in which a document signed by Derek Sharman on 2nd July, 1984 is filed [ — and second — ]files regarding the run-off contract placed by Winchester Bowring of [ — which I assume to be a mistake for “for” — ] the Dolling Baker Syndicate, Policy No 82018039.

I have stated that the application is to vary the subpoena; however, insofar as it is directed to Mr Wakefield personally, or as an officer of CT Bowring Reinsurance Ltd, whose name also appears, the application is to set it aside altogether.

Mr Wakefield is an officer of Winchester Bowring Ltd, (“Winchester Bowring”), who were and are the parties concerned as brokers to the Hiscox Syndicate in relation to the matters which are the subject of the arbitration, and it is accepted between the parties that if the subpoena is to remain in force, it should be varied so as to be directed to Winchester Bowring Ltd, and so that the direction should be to attend by Winchester Bowring’s proper officer for the purpose of producing the documents. It is also accepted that the requirement that the witness attend throughout the trial should be deleted.

At one stage Mr Stephen Tomlinson, QC for the plaintiff was contending that these two defects were sufficient grounds in themselves to set aside the subpoena in toto and that I should decline to permit it to stand amended as to its terms either in those respects or the other respects in which, in the course of the application, Mr Rokison, QC for the defendant has conceded that modification is called for.

However, it has seemed to me, as it seemed to Mr Justice Steyn in the leading case of The Lorenzo Halcoussi, [1988] 1 Lloyd’s Rep 180, at p 185 that the subpoena duces tecum is to be regarded as —

. . . a servant of the administration of justice which the Court has inherent power to amend into whatever form it thinks just . . .

and, as Mr Justice Steyn did in that case, I propose to treat theapplication on its mertis before deciding to set aside the subpoeana in toto or to allow it to proceed amended in suitable form to reflect the extent of the objections validly taken.

By way of background, the relevant position in the arbitration is as follows. The Hiscox Syndicate’s claim is one of a number of claims by insurers against the defendant’s syndicate as reinsurers of 100 per cent or, in the case of the Dolling Baker Syndicate, of 50 per cent of a number of aggregate excess of loss reinsurance agreements. The brokers for Hiscox were Winchester Bowring whose employee, Mr Gallafent, was the individual broker principally involved. So far as the Hiscox arbitration is concerned, liability has been found to be established against the defendant to indemnify the Hiscox Syndicate under the relevant reinsurance agreement, but the second stage of the arbitration raises issues as to quantum and, in particular, whether particular sums expended by Hiscox are within the right of indemnity now established.

The particular point which has arisen is whether or not the Hiscox Syndicate can recover under the indemnity various sums paid in the United States pursuant to its participation in a market settlement called the Wellington Facility, an arrangement made between various insurers and supported by the London market to achieve co-operation and unity of approach in disposing of the large number of asbestosis claims made against insurers in the United States, arising over long periods of time and involving many complications, not least as to the apportionment of the claims against the various insurers involved at various times over the years.

The Hiscox Syndicate paid various sums pursuant to the terms of the Wellington Facility, the details of which do not concern me, and it is the contention of the defendant that the terms of the reinsurance agreement do not entitle Hiscox to an indemnity for those sums since they were sums paid into a pool administered under the broad terms of the facility whereby the contributions of the subscribers were apportioned among the claims of the insurers on such basis that Hiscox cannot readily, if at all, prove that their payments have been paid or applied in actual settlement of claims for which Hiscox, as opposed to other insurers, were liable. That is a crude simplification of par 33 of the defendant’s points of defence in the arbitration. The point apparently involves several million dollars.

It is the contention of Hiscox in the arbitration that the point taken is not open to the defendant because in July, 1984 the defendant gave blanket approval for Hiscox and the various other reinsureds for whom Winchester Bowring acted to enter into the Wellington Facility Agreement, without prejudice to their rights of indemnity by the defendant syndicate, as a means of settling the United States’ claims. Hiscox rely upon a key document, a note dated July 2, 1984 and signed on behalf of the Outhwaite Syndicate as evidence of that agreement (see exhibit SRDB3). The note was apparently signed by Mr Sharman, a deputy underwriter at the Outhwaite Syndicate, in the presence of Mr Gallafent, who is shortly to give evidence in the arbitration. It reads:

Confirm that assents to the proposed scheme will not prejudice their position: but will not in any way diminish their responsibility in running off the account and accounting providing accurate information.

I shall call the document “the Note”.

I need not go further into the facts and documents surrounding the transaction, which are explained by Mr Gallafent at par 12 of his witness statement, which has been the subject of advance exchange in the arbitration, save to say that Mr Gallafent apparently recalls the events and the order and circumstances of the production of the various documents surrounding it as a matter of personal recollection and assertion. On the other hand, as a matter of inference, and ex post facto reconstruction, the defendant, based on the statement of Mr Sharman also before me, takes the point that when Mr Sharman initialled the Note for the defendant’s syndicate (a) he did not intend to make (and did not make) any general agreement or representation in relation to the position of all the insurers for whom Winchester Bowring acted, (b) the confirmation related simply to the position of the Dolling Baker Syndicate, also represented by Winchester Bowring. This contention is based on the assertion of Mr Sharman that he would not have given blanket approval in the absence of Mr Outhwaite, who was apparently abroad at the time. Reliance is also placed on the fact that the Note bears also the signature of the Merritt Syndicate (via Mr Emney), albeit made seven weeks later on Aug 23, 1984. The practical impact of the point is that whereas the defendant reinsured Hiscox and the other syndicates for whom Winchester Bowring acted 100 per cent, the Dolling Baker Syndicate was a 50/50 Outhwaite/Merritt reinsurance, it being inferred and asserted for the defendant that the Note and the agreement it evidenced was intended to be limited to the Dolling Baker risks at the time Mr Sharman signed it. This is in issue, Mr Gallafent asserting that Mr Emney’s scratch was added later to the same document to indicate Merritt’s acceptance of the terms of the Note in relation to the one syndicate jointly reinsured by Merritt.

That is the issue which underlines the application for this subpoena. Before setting out the contentions of the parties I should record that I have had placed before me a substantial body of affidavit evidence in relation to the application, being three affidavits from Mr Fitzsimmons of Ince & Co setting out the objections of the plaintiff and Winchester Bowring to the application and form of the subpoena, and one from Mr Bailey of Elborne Mitchell which makes a number of concessions as to that form in an endeavour to meet certain of the objections stated.

Dealing with the first category of documents requested by the subpoena, Mr Fitzsimmons’ first affidavit makes clear that Winchester Bowring have in their possession the Note of July 2, 1984 and no objection is made to its production. However, objection is taken to producing the file (“the No 1 file”) in which that document is kept inter alia, on the grounds that the documents within it, and particularly within the immediate sub-file in which the Note is to be found in large part consist of privileged documents prepared at the suggestion of Ince & Co. Many of them also relate to matters handled on behalf of other clients of Winchester Bowring, and these are confidential to those clients. The sub-file mentioned also includes a copy of an attendance note between one Kate Slavinka, the claims manager in Outhwaite’s box and Mr Gallafent, recording a conversation which related to the circumstances in which the handwritten document was produced. It is said that, without prejudice to the points raised by way of objection, Winchester Bowring is prepared to produce that copy document at the arbitration. As regards the remaining sub-files within file No 1, it is said that they consist of a large quantity of miscellaneous documents relating to the affairs of a number of different clients of Winchester Bowring. Many or most of those documents are confidential to the clients, some are privileged and many are probably the property of the clients, although some are originals of letters sent by or on behalf of Outhwaite to Winchester Bowring in respect of more than one reinsured client of Winchester Bowring.

In dealing with the second category of documents requested under the subpoena, it is said that these are some 11 files which relate to the reinsurance of the Dolling Baker Syndicate by the Outhwaite and Merritt Syndicates. They are Outhwaite files including a placing file and a claims file. The latter are large files many inches thick containing hundreds of documents. There are also three “personal” files of various individuals within Winchester Bowring, which contain a variety of material, much of which is privileged. Objection is taken to the production of those documents on the grounds, inter alia, that save insofar as the documents are common to Mr Outhwaite and Winchester Bowring, many of them are confidential to Winchester Bowring Ltd’s clients, the Dolling Baker Syndicate, and many are probably their property. The point is made that, so far as Mr Fitzsimmons is aware, the Dolling Baker Syndicate have not been served with a subpoena. He states that he cannot understand what possible relevance the vast majority of the documents could have to the dispute between Mr Hiscox and Mr Outhwaite on a quite separate reinsurance contract. Further, he says that it will place Winchester Bowring and the Dolling Baker Syndicate in great difficulty if the documents have to be produced at the arbitration due to start on Apr 24, 1990 since, on that day, the documents are required at the trial of an action between Merrit, Dolling Baker and Winchester Bowring in the Commercial Court where they are highly relevant. That trial is due to run for many weeks. Finally it is stated that certain documents are privileged, particularly within the “personal” files.

In those circumstances, it is requested in the affidavit that the subpoena be varied so that the addressee is required to produce at the arbitration only the Note although, as I have already stated, Mr Wakefield will further produce voluntarily a copy of the attendance note to which I have referred.

The substantial objection of Mr Tomlinson to the form and content of the subpoena is that it offends the principle and the various well established authorities to the effect that a subpoena should specify precisely the particular document or documents required to be produced and may not be used as an instrument to obtain discovery from a third party. In this respect he has referred me to Lee v Angas, (1866) LR 2 Equity 59, per Sir W Page-Wood at p 63, Elder v Carter, (1890) 25 QB 194, per Lord Justice Lindley at pp 198-199, Fairchild v MacFarlane, [1891] 2 QB 241, per Lord Esher at pp 247-249 and Lord Justice Fry at pp 251-252, and the recent decision of Mr Justice Steyn already mentioned, The Lorenzo Halcoussi at pp 184-185. Mr Tomlinson says that, in the context of that principle, the subpoena is offensive and oppressive for the following reasons. (1) Save in respect of one particular specified document, namely the Note, as to which there is no objection to production, the subpoena amounts to a roving exercise in discovery. It is purely speculative in that essentially it is aimed at obtaining an answer to the two questions: (a) what documents surround the original Note in the file in which it has been kept? (b) is there a copy of the document in the Dolling Baker files relating to Dolling Baker reinsurance policy No 82018039? Thus, in real terms, it is not aimed at the production of the specific document relevant to the defendant’s case in the arbitration by reason of its contents, but is aimed at general discovery of the surrounding documents in the file to see what inference if any may be drawn from the position in the file of the Note or, if it exists, a copy of the Note.

Mr Tomlinson says that the generality of the documents requested is of particular concern and open to particular objection because the files contain, first, a number of documents which are the subject of legal privilege in the hands of Winchester Bowring, and, second, in the case of the Dolling Baker files, documents which by definition relate to the affairs of another client of Winchester Bowring, in relation to which it is accepted that the contents are largely if not wholly irrelevant to the arbitration dispute between the Hiscox Syndicate and the defendant’s syndicate, and in relation to which Winchester Bowring owe obligations of confidence as clients, from which obligations they have not been discharged.

(2) It is said that albeit Mr Bailey has made certain concessions at pars 13 to 14 of his affidavit on behalf of the defendant, namely that (a) the defendant does not seek discovery of any documents which are legally privileged and (b) the defendant no longer seeks production of those Dolling Baker files Nos 2, 3, 5, 11 or 12 (thus leaving 1, 4, 6, 7, 8, 9, and 10 still sought) these concessions do no more than reduce, but do not remove, the vice of the subpoena since, even if the concessions are catered for, it remains at best a request for production of a broad “class” of documents rather than for specifid documents known to exist: contrast the observations of Lord Fraser in Re Asbestos Insurance, [1985] 1 WLR 331 at pp 337H to 338A. That was a case concerning the specification of documents in connection with letters rogatory under the Evidence (Procedure in Other Jurisdictions) Act, 1975, but it related to an analogous question to that arising here, namely the degree to which an application was legitimate (as being concerned with actual and properly specified documents), or was objectionable (as being concerned with conjectural documents which may or may not exist): see pp 338B to 339A. Mr Tomlinson adds that the fact that the defendant is now making concessions as to what is required to be produced indicates a recognition that the subpoena as a whole is too widely drawn and/or in the nature of an application for discovery (contrast the remakrs of Mr Justice Steyn in The Lorenzo Halcoussi at p 185 col 1).

(3) Quite apart from the objections as to form, and accepting for the purposes of argument the basis of the defendant’s application, Mr Tomlinson says that its supposed value is illusory on the facts of the case, as made clear by Mr Gallafent’s statement and the explanatory affidavits of Mr Fitzsimmons. The position in that respect is as follows. The original manuscript Note (which was produced before me in the course of the application) is located in file No 1, which it appears is a mixed collection of documentation compiled by Mr Gallafent in the course of this work at Winchester Bowring and not relating to the affairs of any specific syndicate (see: the statement of Mr Gallafent at pars 7 and 8, and pars 2 and 3 of Mr Fitzsimmon’s third affidavit). Quite apart from the fact that the file now contains much privileged material, it cannot therefore assist in demonstrating that the agreement evidenced by the Note and/or that the Note on its proper construction relates to the reinsurance of the Dolling Baker Syndicate alone. In that respect the issue will turn on oral evidence, since either the agreement was oral and the Note merely evidence of it, or it was contained in the Note which is ambiguous and therefore requires oral evidence to elucidate it.

Sofar as the Dolling Baker files are concerned, no specific additional document is sought save a copy of the Note, which, if it exists, will not of itself demonstrate that the confirmation related only to the Dolling Baker Syndicate. That is because (i) it is the case for Hiscox that the Note related to and/or covered the reinsurances of all Winchester Bowring clients, including Dolling Baker, thus its presence would be consistent with the evidence of both sides; (ii) although it is known that a copy does not appear in the file of the Hiscox Syndicate, production is not sought of the files of the other clients of Winchester Bowring in order to test whether the Dolling Baker file is the sole client’s file in which such a copy appears or not; (iii) in any event, as already noted, the question of whether or not the acknowledgement of Mr Sharman was in the general terms contended for by Hiscox, or the limited terms for which the defendants contend, will ultimately depend upon the oral evidence of the witnesses concerned. The best that can be said is that the information sought may, if it proves favourable, be of some assistance in testing the evidence of Mr Gallafent.

(4) Upon that last question, the essence of the defendant’s case is set out at par 11 of Mr Bailey’s affidavit where he says that the file in which the Note is kept is recognized to be of importance by Mr Gallafent himself in par 8 of his witness statement. Indeed, it has been made clear by Mr Rokison that it was the supply of that statement by way of early exchange of proofs which triggered the issue of the subpoena. That being so, says Mr Tomlinson, since there is no challenge to the bona fides of Mr Gallafent’s assertion as to the location of the note or the reason for its placement in the general file in which it is to be found, the nature of the application stands revealed (a) as a speculative exercise in discovery aimed at eliciting material for cross-examination of Mr Gallafent, which there is no good reason to suppose exists, and (b) as an exercise which, even if successful, will be of dubious if any probative value at best.

(5) Finally, submits Mr Tomlinson, it is quite wrong that the form of the subpoena should be so general that it is already required and will further require the expenditure of time and money by Winchester Bowring and their solicitors in searching for the documents and checking the files to comply with the terms of the subpoena, not merely to ensure full compliance with those terms but to ensure that privileged or confidential documents are not disclosed or produced in response to the subpoena.

Mr Tomlinson emphasizes that the authorities make clear that the reason the Court is so jealous of the rights of third parties affected by subpoenas on applications of this kind is its recognition of the right of such third parties, not themselves being parties to the litigation and hence subject to the obligations of discovery therein, first to have their privacy respected and, second, not to be put to the expense and inconvenience of a discovery exercise.

Mr Rokison’s submissions on the other hand are as follows.

He accepts that the authorities show that a subpoena will be set aside if what is sought is (a) irrelevant, (b) fishing or speculative (and under this head he accepts that a subpoena must be set aside if it is no more than an exercise in discovery rather than an order for the production of specific documents), (c) insufficiently specific, (d) oppressive.

(a) As to relevance, he says that the statement of Mr Gallafent demonstrates that he, as the broker concerned, considers that the place where the document is filed is relevant to show the nature and ambit of the confirmation or at least what the brokers regarded it to be. In relation to file No 1, he says that if examination of the other documents than the Note reveal that the various clients to whom the file related do not appear to include Hiscox, it will be evidence that, whichever clients were included in the confirmation, whether Dolling Baker alone or others as well, at least Hiscox were not included. Sofar as the Dolling Baker files are concerned, he urged that the presence of a copy of the Note within those files would indicate that the confirmation related to the Dolling Baker files. However, he never advanced what I regarded as any satisfactory counter to the points made by Mr Tomlinson as to the probative weight of disclosure of the Dolling Baker files alone (see his point (3) above).

I should here make clear in parenthesis that, while it is clear that there is a copy of the Note in the claims and/or correspondence files kept by the Dolling Baker Syndicate itself, as opposed to the Dolling Baker files kept at Winchester Bowring, that is not of assistance to the defendant on the question at issue because it was provided to that syndicate at a much later stage than the original transaction (see: Mr Fitzsimmons’s third affidavit).

(b) As to Mr Tomlinson’s objections to the fishing or speculative nature of the application and his assertion that it is in the nature of a discovery application against a third party of a kind inappropraite to issue a subpoena, Mr Rokison says simply (1) that the request is not speculative or fishing in the sense that it is known that the files requested exist — indeed, their existence is admitted and the files have been numbered and described in the second affidavit of Mr Fitzsimmons; (2) they are required, and required to be examined, as “files” and not as itemized documents (see: further below); and (3) they are required not as an exercise in discovery, which he concedes is not legitimate, but upon the basis, long recognized as the legitimate purpose of a subpoena duces tecum, that they are required in aid of the testimony of a witness to be called (Mr Gallafent).

(c) Mr Rokison submits that the subpoena is sufficiently specific. He points out that the form set out in appendix A, referred to in RSC, O 38, r 14, which specifies the form for subpoenas, simply requires identification of the “documents or things to be produced”. In this case, subject to the concessions of Mr Bailey already referred to, he says that what is wanted is the “files” and/or each file as an entity and not as a series of specified documents. He observes that in the case of Rio Tinto Zinc Corporation v Westinghouse Electric Corporation, [1978] AC 547 at p 562, Lord Denning, MR, appears to have assumed that in an appropriate case the requirement that a “file” be produced would a sufficient and proper description for the purposes of a subpoena. Mr Rokison acknowledges that the purpose for which the files are required is to answer the questions referred to as (a) and (b) under head (1) of Mr Tomlinson’s submissions, and he says that it is the files which are the necessary documents or things from which to obtain those answers.

(d) Mr Rokison further submits that neither the form nor the purpose of the subpoena is oppressive, in that he says the subpoena was issued on Mar 15, 1990, as soon as reasonably possible after receipt of Mr Gallafent’s proof, which highlighted the relevance of the files, there then being over five weeks before the start of the arbitration at which Mr Gallafent is to be a witness. He says that the defendant has attempted to restrict the number of files requested in order not to impose an unnecessary burden and that, bearing in mind that Winchester Bowring and their solicitors must have reviewed all the files connected with the Hiscox/Outhwaite arbitration, in the Dolling Baker action in the High Court, Mr Fitzsimmons has in his affidavit overstated the difficulties and expense involved in Winchester Bowring being required to comply with the subpoena.

(e) In particular, and finally, Mr Rokison submits that whether or not such trouble and expense have in fact been inflicted on Winchester Bowring, it is too late for them to complain of it as a means of objecting to the subpoena. In this respect he relies on the decision in Lee v Angas to which I have previously referred, in which Sir W Page-Wood, Vice Chancellor, having roundly attacked and condemned the form of a subpoena directed to the former solicitor of one or both parties to a suit before him which related to the validity of certain mortgage transactions on the grounds that the subpoena was far too wide (it required the solicitor to produce to an Examiner all papers, etc relating to all dealings and transactions between his firm and the plaintiffs or defendants for the previous 30 years without specifying any particular documents required) nonetheless ordered the solicitor to produce the documents required under the subpoena on the basis that he had admitted by affidavit that he had all the books and documents mentioned in his possession and that —

. . . if he has got them already there is no reason why he should not produce them.

An order was duly made for the solicitor to attend the Examiner at his own expense, bringing the documents with him “to be dealt with according to the exigencies of the subpoena”, whatever that may have meant in the circumstances.

I make that last observation because it is apparent that, so far as the practice relating to subpoenas is concerned, while it is usual for a subpoenaed witness to turn up at the trial for which he has been subpoenaed and to surrender the documents to the Court for inspection by the parties with a view to use of such documents as appear to them relevant, there is no obligation on the witness to allow such inspection. It was stated in Fairchild v MacFarlane (above), another case where the generality of the documents required was said to be tantamount to an order for discovery, that prior to the Judicature Acts (and it is intrinsic in the Court’s decision that the position had not changed):

A subpoena duces tecum was an order from the court to a person to produce a document which was alleged to be in his possession, to produce it to the Court at the trial and not to produce it to the parties, for, under a subpoena duces tecum, when a witness brought the document into court the parties could not ask him for it. The parties had no right to see it and all that could be done on a subpoena duces tecum was that the witness produced the document to the Court, subject to the order of the Court, not to the parties, and he might insist that his document should not be handed to the parties even at the trial. All that could be done was that the Judge, when he was satisfied that it was evidence in the case for either of the parties, might order it to be read [per Lord Ester, at pp 247 to 248; see also: Lord Justice Pearson in Penn Texas Corporation v Murat Anstalt No 2, [1964] 2 QB 647 at p 667].

In this case I have been informed that, if required to attend with the files requested, Winchester Bowring may well stand upon that view, in order to protect their position as to privilege and the confidentiality of their clients’ papers insofar as held in the files. Quite what would then be envisaged as the likely or appropriate procedure has not been dealt with in any detail by Mr Rokison, but he presumably anticipates that Mr Gallafent should be requested to peruse the files as he gave his evidence, and that, if Mr Rokison as the respondents’ Counsel does not like the answers he gets, the arbitrator will be requested to examine the files in their entirety with a view to ascertaining the veracity of the answers given by Mr Gallafent. Whether or not that is a procedure which the arbitrator will welcome or undertake is another matter. However, that may be, Mr Rokison relies on the authority of Fairchild v MacFarlane and the other cases which turned on the view that the applications heard amounted to an order for pre-trial discovery as demonstrating that the vice against which the third party is to be protected is the task of going through the documents in his possession with a view to forming a conclusion as to their relevance and/or seeing whether or not they fall within the terms specified in the subpoena, rather than simply being able to place his hands on the required documents or files from the very description given. If he can do the latter, submits Mr Rokison, then the “no discovery” objection disappears and the ruling of Vice Chancellor Page-Wood in the decision of Lee v Angas is explained, namely that since the solicitor had by the time of his aplication to set aside (a) performed the task of discovery under the terms of the subpoena and (b) admitted possession of the very documents requested, there could be no good purpose in setting aside the subpoena or doing other than require the witness to appear with his documents.

On that particular point, Mr Tomlinson has submitted with some force, in my view, that the end result in Lee v Angas, which is simply referred to or relied on in the subsequent authorities only for the earlier passages concerning the form of the subpoena, but is quoted in the Annual Practice at Note 38/14-19/3 for its end result is a somewhat surprising one. He submits that, if the objection so roundly stated to the form of the subpoena went to jurisdiction, as Fairchild v MacFarlane makes clear it does, then it seems both curious and unjust that a party who maintains his objection, but takes steps to comply in the event of failing in his application to set aside, should thereby lose his right to complain and so render himself liable to the trouble and expense of attendance (ill-compensated for by the bare conduct money to which he is entitled) and the invasion of his privacy (meaning, in a case such as this, the confidence of clients) which forced compliance represents.

I do not seek to question the result on the facts of Lee v Angas; however I observe that it was a case where the solicitor (a) was asked to produce the files and papers of the parties to the litigation (not a third party); (b) was unconcerned to raise matters of privilege in relation to any of the documents sought, and (c) was apparently in a position to produce the documents without further consideration or expense (save attendance). I feel unable to accept that the result in the particular circumstances of that case should apply willy-nilly in this case, where it appears that none of those particular features which I have highlighted is present.

I accept Mr Rokison’s broad submission of principle that the form of the subpoena in this case is not one which on the face of it calls on Winchester Bowring to perform an exercise of discovery such as that referred to in the cases relied on by Mr Tomlinson, in which it appears that the terms of the subpoenas sought were so framed as to be patently applications for pretrial discovery of documents by the persons to whom they were addressed. I also accept that, broadly speaking, the purpose and intention of this subpoena may be characterized as requiring the production of documents in aid of the testimony of a witness, which is the original and proper purpose of a subpoena duces tecum. However, that does not end the matter in my view. It is the effects of the subpoena as much as its purpose which fall to be considered. At the end of the day, all that is sought by way of specific documents required as evidence in the arbitration is the Note itself (which Winchester Bowring do not object to produce) and a copy of the Note, which there is no firm reason to suppose exists. On the basis of an exiguous plea as to relevance and probative effect, the defendant calls for disclosure of numbers of substantial files with the intention of going through all of them in the hope of procuring a benefit which is speculative at best and based on an assumption (which I am not prepared to make on the material before me) that Mr Gallafent has not told or will not tell the truth in relation to his dealings with the Note and his understanding of its contents. I see nothing in the authorities which suggests that it is a legitimate excuse to call for files of documents when it is not asserted that the contents, or at least the bulk of the contents, consist of individually relevant documents. While this subpoena does not in form call for an exercise in discovery on the part of Winchester Bowring, that is at least in part its effect; not in the sense of obliging Winchester Bowring to categorize the contents of the files in terms of relevance to the issues in the action (indeed, the defendant is not concerned with the relevance of individual documents on file; he does not assert it), but in the sense that it calls for a major exercise on consideration and selection if Winchester Bowring is to invoke any bona fide claim for privilege on its own behalf or to seek to protect both the legal privilege and the confidentiality of its clients’ affairs, either of which appears to me a legitimate and defensible aim in the circumstances of this case.

I consider that the vices of this subpoena are that it is far too wide in its terms and it is based on a wholly speculative premise, in the sense that it calls for production of large numbers of individual documents, which it acknowledges have nothing to do with the case, their only relevance being the possibility that certain of them provide the bread for a sandwich containing as its filling a copy of the Note, which may or may not exist. As such, this subpoena is a request fashioned for a purpose which goes well beyond the basic purpose of a subpoena, namely to obtain production at trial of specified documents the existence or likely existence of which is demonstrable and which are necessary for the just disposal of the cause. I do not consider that such basic purpose can or should be stretched in this case to cover the speculative inspection of large numbers of documents for the purposes of cross-examining a witness. Further, I consider it oppressive in the circumstances of this case to require the production of the files covered by the form of the subpoena for the pursuit of such a questionable benefit in terms of probative value.

Insofar as it might be sought to put the claim to inspect the contents of the documents on a wider basis than that contained in the two questions posed at (a) and (b) of Mr Tomlinson’s submission (1) (and Mr Rokison has not sought to do so before me), then I consider that the matter plainly does become an exercise in discovery of the type disclaimed by Mr Rokison. I mention this because, to a considerable extent, his submissions have consisted of the kind of “dexterous retreat” from the original scope of the subpoena which was performed by Counsel and remarked on by Mr Justice Steyn in The Lorenzo Halcoussi at p 185. Like Mr Bailey in his affidavit, Mr Rokison first disclaimed any intention to seek or obtain production of documents for which privilege could be properly claimed; he then reduced in number the files of which production was sought. Finally, the assertion in his written skeleton that the papers in the Dolling Baker files could be produced, inspected and copied at the arbitration (which clearly formed the original purpose of the subpoena) was modified by his apparent acceptance thatthis could not be required if Winchester Bowring took the stance that their files could only be perused by the witness and/or the arbitrator. Even so, the purpose of perusing many of the documents in file No 1, to see whether and if so to what extent it covered the affairs of other clients as advanced by Mr Bailey in his affidavit, was not disclaimed.

Despite the varous disclaimers and suggested variations, I have not at any stage had placed before me a draft of the revised form of subpoena which would be necessary to give effect to them. I am satisfied that the form in which the subpoena now stands is objectionable for the various reasons mentioned above. I am equally satisfied that, whether by means of “a blue pencil” or a comprehensive redrafting exercise, it would not be an easy task to put the subpoena into an acceptable form on any basis other than that offered by the plaintiffs. Nor would it be a task which the Court should be asked to perform other than on the basis of a considered draft tendered by Counsel. Since I have none before me, I decline to fill the void.

Accordingly, the terms of the subpoena will be varied to a form in which it is to be addressed to Winchester Bowring Ltd, to attend by its proper officer and so as to require only the production of the original Note, together with the attendance note of the meeting between Mr Gallafent and Miss Slavinka which has been conceded to be relevant and in the possession of Winchester Bowring. The requirement of attendance by the proper officer throughout the hearing of the arbitration will also be deleted.

DISPOSITION:

Judgment accordingly.

SOLICITORS:

Ince & Co; Elborne Mitchell