Arbuthnott v. Fagan

[1996] L.R.L.R. 143

COURT OF APPEAL

June 21, 1994.

ARBUTHNOTT v. FAGAN AND OTHERS

Before Sir Stephen Brown, President

Lord Justice Staughton

and Lord Justice Rose

Lloyd's litigation - Practice - Disclosure - Substantial losses made by syndicates - Loss review committee appointed - Members' agents gave evidence to committee - Names applied for discovery and production of transcripts of evidence - Whether transcripts subject to statutory confidentiality - Whether documents relevant - Whether discovery necessary for fairly disposing of cause or matter or for saving costs.

The plaintiffs were members of Lloyd's who participated in the affairs of syndicates run by the first defendants. The other defendants were members' agents at Lloyd's who each acted for one or more of the Names and arranged their participation in the Feltrim syndicates.

In the first action relating to the years 1987 to 1989 the plaintiffs alleged that Feltrim were negligent in their underwriting, and that as the members' agents had agreed with the Names that they would do the underwriting they were liable to the Names for what was negligently done. In the second action relating to the 1990 year of account the plaintiffs alleged that the members' agents were negligent in placing or keeping their Names on the Feltrim syndicates.

There were very substantial losses made by the syndicates in those years and the Council of Lloyd's appointed a loss review committee under the chairmanship of Sir. Patrick Neill, Q.C.

Under Byelaw 8 of 1991 the committee had power to require several classes of persons including any member of Lloyd's and any underwriting agent to appear before them and give evidence in relation to the circumstances giving rise to the losses.

The members sued in these actions gave evidence which was recorded in seven volumes of transcripts.

The Names applied for discovery of the transcripts.

The members' agents (the defendants) contended that the transcripts should not be disclosed on the grounds that (1) there was statutory confidentiality enacted by the Information and Confidentiality Byelaw 21 of 1993; (2) the documents were not relevant and (3) that discovery of the transcripts was not necessary for fairly disposing of the cause or matter or for saving costs in terms of R.C.S., O. 24, r. 13.

-Held, by Cresswell, J. that an order for disclosure would be made.

The members' agents appealed.

-Held, by C.A. (Sir Stephen Brown, P., Staughton and Rose, L.JJ.) that (1) it was not enough to exempt a document from discovery that it was confidential; confidentiality was a relevant consideration when determining whether disclosure was necessary under O. 24, r. 13; but for a document to be exempt one of the existing heads of privilege or immunity must apply or there must be legislation having the same result (see p. 152, col. 2);

(2) it was doubtful whether the Information and Confidentiality Byelaw 1993 was at all concerned with discovery in a civil action, but if it did it only applied to information which the member had obtained as the result of the exercise of powers under the Lloyd's Acts; it did not apply to information which he already had before those powers were invoked; the members of the Neill committee would not be allowed to disclose the transcripts but there was no prohibition on the members' agents doing so; the members' agents already had the information which was encapsulated in their evidence to the loss review committee (see p. 152, col. 2; p. 153, col. 1);

(3) there was a prima facie case of relevance; and there was no assertion on oath by the members' agents that the documents were not relevant; it was highly likely that there would be a good deal of relevant material in the transcripts (see p. 153, col. 2; p. 154, col. 1);

(4) it could probably not be said that the transcripts would not do much to ensure the fairness of the proceedings; seeing that they were likely to encapsulate the members' agents' account of what happened set out under the supervision of an expert chairman they were likely to be worth more than all the other documents put together; they were necessary for fairly disposing of the case and for saving costs (see p. 154, col. 1);

(5) if the motive for the procedure of setting up a loss review committee was that the procedure was designed to assuage the anxiety and possibly anger of Lloyd's Names who had lost a great deal of money and might have little means of discovery how that had come about, it did not suggest that there was a public interest which required immunity from discovery or indeed any public interest at all (see p. 154, col. 2);

(6) although there was a question of candour in this case, there was no public interest that witnesses should give their evidence candidly in this internal Lloyd's type of inquiry; and the members' agents did not obtain the information which they were now asked to disclose by any compulsory powers; they had it already (see p. 154, col. 2; p. 155, col. 1);

(7) the case was rather remote from the doctrine of public interest immunity; and although there were cases where it had been held that the evidence of witnesses was the subject matter of public interest immunity it did not go as far as this case; the appeal would be dismissed (see p. 155, col. 1).

The following cases were referred to in the judgment of Lord Justice Staughton: (*144)

Burmah Oil Co. Ltd. v. Governor and Company of the Bank of England and Another,

(H.L.) [1980] A.C. 1090;

Dolling-Baker v. Merrett Syndicates, [1990] 1 W.L.R. 1205;

Lonrho plc v. Fayed and Others, [1994] 2 W.L.R. 209;

R. v. The Inhabitants of St. Mary, Whitechapel (1848) 12 Q.B.D. 120;

R. v. Lewes Justices, ex parte Secretary of State for the Home Department,

(H.L.) [1973] A.C. 388;

R. v. Chief Constable of West Midlands, ex parte Wiley, (C.A.) [1994] 1 W.L.R. 114;

Science Research Council v. Nasse, (H.L.) [1980] A.C. 1028.

This was an appeal by the defendants, the members' agents, represented by Mr. Patrick Feltrim Fagan and Feltrim Underwriting Agencies Ltd. from the decision of Mr. Justice Cresswell given in favour of the plaintiff Names represented by Mr. Hugh Sinclair Arbuthnott and holding in effect that the plaintiffs were entitled to discovery of the transcripts of evidence which the members' agents had given before the loss review committee set up to look into the losses suffered by the syndicates of which the plaintiffs were members.

Mr. Justice CRESSWELL delivered the following judgment on May 26, 1994:

The applications

By notice dated Apr. 21, 1994 under the summonses for directions the plaintiff Names apply for orders in actions 1992 Folio Nos. 1856, 2423 and 3383 ("the 1987-1989 actions") and action 1993 Folio No. 1191 ("the 1990 action") for the discovery and production by the members' agents of seven transcripts of evidence given by them, their servants or agents to the Feltrim Loss Review committee. The applications are made under O. 24, rr. 7 and 11. The members' agents object to the production of the seven transcripts. They submit that the statements in the transcripts are subject to statutory confidentiality alternatively that these documents are not necessary for fairly disposing of the matter and are in any event irrelevant to the issues in the 1987-1989 actions. Feltrim, the managing agent ("Feltrim") supports the members' agents' objections.

The affidavit evidence

There are four affidavits relevant to the applications: - Mr. Connoley's seventh and eighth affidavits on behalf of the plaintiff Names and the second and third affidavits of Miss Jones sworn on behalf of the members' agents.

The Neill committee

The Feltrim Loss Review Committee ("The Neill Committee") was appointed by the Council of Lloyd's on July 10, 1991 under and pursuant to the Loss Review Byelaw (No. 8 of 1991) and reported on Sept. 30, 1992. The Neill Committee's terms of reference were to review and report on the circumstances giving rise to the losses suffered on Feltrim Syndicates 540/2 for the 1987, 1988 and 1989 years of account and on Syndicate 847 for the 1987, 1989 and 1990 years of account.

The Lloyd's Act, 1982

Section 6(2) of the Lloyd's Act 1982 provides:

The Council may -

(a) make such byelaws as from time to time seem requisite or expedient for the proper and better execution of Lloyd's Acts 1871 to 1982 and for the furtherance of the objects of the Society, including such byelaws as it thinks fit for any or all of the purposes specified in Schedule 2 to this Act; and

(b) amend or revoke any byelaw made or deemed to have been made hereunder.

Schedule 2 to the Lloyd's Act 1982 provides that without prejudice to the generality of the powers vested in the Council by s. 6(2) the Council may pursuant to that section make byelaws for the following purposes-

(21) For requiring members of the Society, Lloyd's brokers, underwriting agents, annual subscribers, associates and substitutes, or any director or partner of a Lloyd's broker or underwriting agent or any person who works for a Lloyd's broker or underwriting agent in such capacity as may be specified by the Council to supply such information to the Council as may be so specified;

(22) (a) For empowering the Council to order any inquiry, including an inquiry concerning the affairs of any member of the Society or syndicate of members or any Lloyd's broker or any underwriting agent;

(b) For requiring any member of the Society or any director or partner of a Lloyd's broker or underwriting agent or any person who works for a Lloyd's broker or underwriting agent in such capacity as may be specified by the Council to give when required such information as may be in his (*145) or its possession or to produce such documents and material as may be in his or its possession or under his or its control relating to the subject-matter of the inquiry; . . .

(25) For requiring that, save in so far as the same may be used in disciplinary or criminal proceedings, due confidentiality is preserved with respect to any information supplied or documents or material produced pursuant to byelaws made for the purposes specified in paragraphs (21), (22) (b) and (24) of this Schedule, especially in so far as such information, documents or material relate to the affairs of any persons (including principals and clients of Lloyd's brokers and of underwriting agents) other than those supplying or producing such information, documents or material. . .

Loss Review Byelaw

On July 10, 1991 the Neill Committee was appointed under Loss Review Byelaw

(No. 8 of 1991) ("the loss review byelaw").

The loss review byelaw provides: -

2. Review of the circumstances giving rise to syndicate losses

(1) If in relation to any single year of account of a syndicate one of the events mentioned in sub-paragraph (2) occurs, then, subject to sub-paragraph (3), the Council shall appoint such person or persons as it thinks fit to review and to report on the circumstances giving rise to that event in such manner as the Council may direct.

(2) The events referred to in sub-paragraph (1) are:

(a) that an underwriting account comprised in an annual report prepared in respect of the syndicate, made up to 31st December 1990 or any date thereafter, and sent to the Society under the Syndicate Accounting Byelaw (No. 11 of 1987) shows under item XVI of the format required by Schedule 4 thereto -

(i) in relation to a year of account closed in accordance with the accounting policy disclosed pursuant to paragraph 5(a) of Schedule 3 to that Byelaw ("the accounting policy") at the reference date or during the year ending on the reference date, a loss,. . .in any such case amounting to not less than 100 per cent of the syndicate allocated capacity for that year of account;. . .

6. Production of documents and evidence

(1) If it appears to a person or persons appointed under paragraph 2 that any person mentioned in sub-paragraph (2) of this paragraph has or may have in his or its possession, custody, power or control any information, documents or other material relating to any matter to be reviewed or relevant in connection therewith, the person or persons so appointed may require him or it ([in the case of a corporate member, by a director or officer thereof and] in the case of a [Lloyd's adviser, a] Lloyd's broker, an underwriting agent or a non-Lloyd's broker, by a director, partner or officer thereof):

(a) to attend before them and their agents;

(b) to give oral evidence to them or their agents, and answer questions;

(c) to produce all such information, documents or other material (including information, documents and other material relating to the affairs of principals and clients of Lloyd's [advisers, Lloyd's] brokers, underwriting agents, non-Lloyd's brokers or other persons) to them or their agents;

(d) to give them or their agents all reasonable facilities in his or its premises for the purpose of examining any such documents and other materials;

(e) to permit them or their agents to copy any such documents or other material in his or its premises or elsewhere;

and otherwise to give them all assistance in connection with the review which he or it is reasonably able to give; and it is that person's duty to comply with the request. . .

(2) The persons from whom assistance may be required under sub-paragraph (1) are:

(d) any director [or employee of a corporate member or any director], partner or employee of any Lloyd's [adviser, Lloyd's] broker or underwriting agent;

7. Reports

(1) Any person or persons appointed under paragraph 2 may, and if so directed by the Council shall, make interim reports to the Council, and on the conclusion of their review shall make a final report.

(2) The Council shall furnish a copy of any report made by the person or persons appointed under paragraph 2 to:

(a) any member of the syndicate;

(b) to any person who has at any time acted as managing agent of the syndicate in relation to the year of account concerned;

(c) to any person who has acted as members' agent on behalf of any member of the syndicate in relation to the year of account concerned; (*146)

(d) the persons who acted as syndicate auditors of the syndicate at any time in relation to the year of account concerned; and

(e) any other person whose financial interests appear to the Council to be affected by the matters dealt with in the report.

[(3) The provisions of this paragraph shall take effect notwithstanding the provisions of the Information and Confidentiality Byelaw (No. 21 of 1993).]

8. Provisions applicable to information obtained and to persons appointed

A review conducted by this byelaw shall be treated as an "inquiry" for the purposes of the byelaw entitled "Information and Confidentiality" [(No. 21 of 1993)] and the byelaw entitled "Disciplinary Committees" (No. 6 of 1983).

Sub-paragraph 3 of par. 7 was added by Byelaw No. 21 of 1993 with effect from Oct. 1, 1993. The words in square brackets in par. 8 were substituted by Byelaw No. 21 of 1993 with effect from Oct. 1, 1993. Prior to Oct. 1, 1993 par. 8 provided that a review conducted under this byelaw shall be treated as an "inquiry" for the purposes of the byelaw entitled "Information and Confidentiality" (No. 4 of 1983).

Information and Confidentiality Byelaw (No. 4 of 1983)

The Information and Confidentiality Byelaw (No. 4 of 1983) ("the 1983 Byelaw") provided:

1. The Council may at any time require that any member of the Society, and Lloyd's broker, any underwriting agent, any director, partner or employee of any Lloyd's broker or underwriting agent, any annual subscriber, any associate or any substitute give or produce to the Council any information, documents or other material relating to the business of insurance at Lloyd's or to any person or persons involved in or connected with such business or any other information, documents or other material which the Council may consider necessary or appropriate to be given or produced (including information, documents or other material relating to the affairs of principals and clients of Lloyd's brokers, underwriting agents or other persons).

2. The Council may take or facilitate the taking of proceedings of any kind against any persons appearing to be responsible for or concerned in any frauds, crimes, malpractices or misconduct as defined in these byelaws practised or attempted or intended to be practised in connection with the business of insurance at Lloyd's or in any way related thereto.

3. Save insofar as they may be used in or for the purposes of any inquiry or any disciplinary, criminal or other proceedings or the exercise of powers contained in Lloyd's Acts 1871 to 1982 and the byelaws made thereunder, all information, documents and other material produced or supplied pursuant to Lloyd's Acts 1871 to 1982 or to the byelaws made thereunder (including especially all information, documents and other material relating to the affairs of principals and clients of Lloyd's brokers, underwriting agents or other persons) shall be treated as confidential.

Information and Confidentiality Byelaw (No. 21 of 1993)

The Information and Confidentiality Byelaw (No. 21 of 1993) provides -

2. Power to require production of information

The Council may at any time require that any member of the Society, any Lloyd's adviser, any Lloyd's broker, any underwriting agent, any annual subscriber, any associate or any substitute give or produce to the Council any information, documents or other material relating to -

(a) the business of insurance at Lloyd's; or

(b) any person or persons involved in such business

or any other information, documents or other material which the Council may consider necessary or appropriate to be given or produced (including information, documents or other material relating to the affairs of principals and clients of Lloyd's advisers, Lloyd's brokers, underwriting agents or other persons).

3. Non-disclosure of information

Subject to the following provisions of this byelaw, no information obtained pursuant to any exercise of powers under Lloyd's Acts 1871 to 1982 (or any byelaw or regulation made thereunder) shall be disclosed without the consent of -

(a) the person from whom it was received; and

(b) (if different) the person whom it concerns.

4. Disclosure of information for certain purposes

Notwithstanding the provisions of paragraph 3, or the terms of any undertaking whether express or implied, nothing shall prohibit the disclosure of information -

(a) for the purposes of:

(i) criminal proceedings,

(ii) any inquiry, or

(iii) disciplinary proceedings; (*147)

(b) for the purposes of assisting a regulator, investment exchange, professional body or clearing house in the discharge of its functions, whether in taking or facilitating proceedings or otherwise;

(d) where the information has become public knowledge from other sources; or

(e) where the Council so directs, provided that such disclosure or use is for the advancement and protection of the interests of the Society as a whole.

5. Consequential revocations and amendments

The provisions of Schedule 2 to this byelaw (consequential revocations and amendments) shall have effect.

6. Commencement

This byelaw shall come into force on 1 October 1993.

SCHEDULE 1. INTERPRETATION

In this byelaw: -

"inquiry" means any inquiry before an independent tribunal, whether conducted under statutory powers or otherwise;. . .

"underwriting agent" includes any director, partner or employee of an underwriting agent.

SCHEDULE 2. CONSEQUENTIAL REVOCATIONS AND AMENDMENTS

1. The Information and Confidentiality Byelaw (No. 4 of 1983) is revoked.

2. The following byelaws shall be amended by substituting for "(No. 4 of 1983)" the new reference "(No. 21 of 1993)" namely -. . .

(d) Loss Review Byelaw (No. 8 of 1991) paragraph 8.

4. The Loss Review Byelaw (No. 8 of 1991), shall be amended by inserting after sub-paragraph 7(2) the following new sub-paragraph:

(3) the provisions of this paragraph shall take effect notwithstanding the provisions of the Information and Confidentiality Byelaw (No. 21 of 1993).

The submissions on behalf of the plaintiff' Names

Mr. Cooke, Q.C. submitted on behalf of the plaintiff Names -

(i) Confidential documents are not protected from discovery by reason of their confidentiality alone.

(ii) The members' agents' "Statutory confidentiality" argument should not succeed unless the byelaws on which they rely create a new exception to the obligation to give discovery.

(iii) The "Statutory Confidentiality" argument fails no matter which confidentiality byelaw governs. The relevant byelaw in the present case is the 1983 Byelaw because the Neill Committee was appointed on July 10, 1991 and reported on Sept. 30, 1992 before the 1993 Byelaw came into effect on Oct. 1, 1993. Such information as was given by the members' agents to the Neill Committee was thus obtained "pursuant to" the Loss Review Byelaw in its unamended form. The 1993 Byelaw only came into force for the future as of Oct. 1, 1993 and has no retrospective effect.

(iv) The members' agents resist discovery in relation to documents which represent their evidence to the Neill Committee which they themselves provided to the Neill Committee. The Names do not seek disclosure of information obtained from third parties. It is difficult to appreciate how the question of "confidentiality" can arise at all. An obligation of confidence is imposed on a person who receives information in confidence. Neither the 1983 Byelaw nor the 1993 Byelaw covers information which emanates from the person from whom discovery is sought.

(v) The members' agents' reluctance to disclose the documents sought by the Names runs contrary to an agents' obligation to his principal to produce to the principal all books and documents in his hands relating to the principal's affairs.

(vi) Neither the 1983 Byelaw nor the 1993 Byelaw preclude discovery in the present case. The 1983 Byelaw simply imposes an obligation of confidentiality in relation to the information, documents and other material to which it applies. The Byelaw itself does not prohibit disclosure. Further the Byelaw expressly

creates an exception to the obligation of confidentiality in that it allows disclosure:

. . .for the purposes of any inquiry or any disciplinary, criminal or other proceedings [par. 3].

If a loss review committee amounts to an "inquiry" (which it does, by virtue of par. 8) then a fortiori the High Court must itself either fall into this category or constitute "other proceedings".

(vii) Paragraph 3 of the 1993 Byelaw states that:

. . .no information obtained pursuant to any exercise of powers. . .shall be disclosed.

The members' agents have themselves obtained no such information. Paragraph 4 of the 1993 Byelaw expressly provides that nothing in par. 3 shall (*148) prohibit the disclosure of information for the purpose of "any inquiry". An inquiry is defined in Schedule 1 as -

. . .any inquiry before an independent tribunal, whether conducted under statutory powers or otherwise.

The term "tribunal" clearly includes a Court.

(viii) The subject matter of the transcripts in the possession of the members' agents is plainly relevant to the issues before the Court in both the 1990 action and the 1987-1989 actions. What is said to an inquiry investigating the cause of the losses ought to be available to a Court whose role it is to determine responsibility for those losses.

The submissions on behalf of the members' agents

Mr. Butcher submitted on behalf of the members' agents -

(i) The transcripts of evidence are not disclosable or the production of them ought not to be ordered because the statements in them are subject to statutory confidentiality by virtue of the relevant Lloyd's Byelaws and in particular by reason of the 1993 Byelaw which came into force on Oct. 1, 1993. Alternatively discovery of the transcripts is not necessary for fairly disposing of the matter and indeed these documents are irrelevant to the issues in the 1987-1989 Action.

(ii) The relevant byelaw is the 1993 Byelaw and by reason of its provisions the transcripts are not disclosable. The 1993 Byelaw looks to and prohibits any future disclosure of information obtained pursuant to an exercise of powers under the Lloyd's Acts 1871-1982. The words "information obtained pursuant to any exercise of powers under the Lloyd's Acts 1871-1982" apply equally to information which has been and information which will be obtained pursuant to an exercise of such powers. The 1993 Byelaw revoked the 1983 Byelaw with effect from Oct. 1, 1993. It was intended that the new Byelaw should apply to any previously obtained information. This is reinforced by the reference to the Lloyd's Acts 1971-1982 (or any byelaw or regulation made thereunder).

(iii) The 1993 Byelaw has statutory effect and is binding upon the members' agents and each of the plaintiff Names as a member of the Society of Lloyd's. Further each of the plaintiffs, as an underwriting member of Lloyd's agreed to abide by the Lloyd's Acts and Byelaws made thereunder. In addition there are contractual obligations to the Names and members' agents inter se to abide by the Lloyd's Acts and Byelaws.

(iv) The obligations of discovery arising under the Rules of the Supreme Court do not and cannot override the statutory obligation to preserve confidentiality arising under the Byelaws.

(v) The principal purpose of the 1993 Byelaw is to ensure that full and frank evidence is given to the various bodies exercising powers under the Lloyd's Byelaws (see Lonrho Ltd. v. Shell Petroleum Co. Ltd., [1980] 1 W.L.R. 627 at 637 per Lord Diplock).

(vi) For the purposes of the exception in par. 4(a) of the 1993 Byelaw an action for damages in the High Court cannot be termed "an inquiry" without a misuse of language. The 1993 Byelaw omits a reference to "other proceedings". Its effect (and its manifest purpose) was to exclude civil proceedings from the exception.

(vii) In any event disclosure of the transcripts should not be ordered. The fact that the documents were produced in circumstances of confidentiality is a matter which is to be taken into account in considering whether discovery should be ordered.

The ultimate test is whether discovery of the documents is necessary for the fair disposal of the proceedings. As far as the 1987-1989 actions are concerned the transcripts are not even relevant. As far as the 1990 action is concerned disclosure of the transcripts is not necessary.

The submissions of Feltrim

Mr. Rowland submitted on behalf of Feltrim:

(i) With effect from Oct. 1, 1993 the question of disclosure of information obtained pursuant to the Loss Review Byelaw is governed by the 1993 Byelaw regardless of when the information was obtained. The important consideration is the date when disclosure is sought of that confidential information rather than the date when the information was obtained. Feltrim objects to the disclosure of such information.

(ii) The burden of proof under O. 24, r. 13 rests upon the plaintiffs to establish that an order for production of the transcripts is necessary either for disposing fairly of the cause or matter or for saving costs. As against the possible peripheral relevance of these documents sought by the plaintiffs the Court should attach greater importance to the obvious confidentiality which attaches to the documents and the statutory framework which provides that confidentiality.

Mr. Rowland in addition broadly adopted Mr. Butcher's submissions.

Analysis and conclusions

It is convenient to analyse these applications under two headings, first the 1983 and 1993 Byelaws and second should discovery and production be ordered pursuant to O. 24, rr. 7 and 11? (*149)

1. Certain individual representatives from certain members' agents were called to give evidence before the Neill Committee. They are listed at par. 8 of Miss Jones' third affidavit. The individuals attended to give evidence before the Neill Committee between Jan. 28, 1992 and Feb. 19, 1992. A transcript of the evidence of each witness was taken. The transcripts were forwarded in draft to each witness for correction and approval and then returned to the committee. Copies of the seven transcripts are in possession of Elborne Mitchell, the solicitors acting for the members' agents.

2. The Neill Committee was appointed on July 10, 1991 pursuant to the Loss Review Byelaw and reported on Sept. 30, 1992. At those dates the 1983 Information and Confidentiality Byelaw was in force. Paragraph 8 of the Loss Review Byelaw at those dates expressly provided that a review conducted under the Loss Review Byelaw should be treated as an "inquiry" for the purposes of the 1983 Byelaw. Nothing in par. 3 of the 1983 Byelaw precluded an order for discovery in civil proceedings. Mr. Butcher and Mr. Rowland do not suggest otherwise. Paragraph 3 provided that save in so far as they may be used in or

for the purposes of any inquiry or any disciplinary, criminal or other proceedings or the exercise of powers contained in Lloyd's Acts 1871-1982 and the byelaws, all information, documents and other material produced or supplied pursuant to the Acts or the byelaws should be treated as confidential. Further there is no principle in English law by which documents are protected from discovery by reason of confidentiality alone (see Science and Research Council v. Nasse, [1980] A.C. 1028, at p. 1065D per Lord Wilberforce and par. 24/5/16 of the Supreme Court Practice).

3. The 1993 Information and Confidentiality Byelaw came into force on Oct. 1, 1993. Schedule 2 revoked the 1983 Byelaw. Paragraph 2 of the Interpretation Byelaw (No. 1 of 1983) provides that the Interpretation Act, 1978 shall extend to and be applicable to every byelaw, which shall be deemed to be "subordinate legislation" within the meaning of that Act. Section 23 of the Interpretation Act, 1978 provides that the provisions of the 1978 Act with certain exceptions apply, so far as applicable and unless the contrary intention appears, to subordinate legislation made after the commencement of the 1978 Act. Section 16 of the 1978 Act provides that where an Act repeals an enactment, the repeal does not, unless the contrary intention appears, affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment or affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment. Paragraph 3 of the Interpretation Byelaw provides that:

To avoid any doubt as to the meaning and application of the byelaws, it is declared that the duties, powers and functions imposed and conferred by any byelaw made under Lloyd's Act 1982 were and are exercisable and applicable in relation to any act, default, event or other matter whenever taking place or arising, whether before or after the commencement of Lloyd's Act 1982. . .

It is unnecessary for the purposes of these applications to decide whether the 1993 Byelaw is intended to apply as from Oct. 1, 1993 to information obtained prior to Oct. 1, 1993 pursuant to any exercise of powers under Lloyd's Acts 1871 to 1982 or byelaws, because in my view it is clear that the provisions of the 1993 Byelaw do not (if applicable) preclude the Court from ordering discovery and production by the members' agents of the seven transcripts.

4. I consider that the provisions of the 1993 Byelaw do not (if applicable) preclude the Court from ordering discovery and production by the members' agents of the seven transcripts for the following reasons.

(i) Paragraph 3 of the 1993 Byelaw is concerned with "information obtained pursuant to any exercise of powers under Lloyd's Acts, 1871 to 1982 (or any byelaw or regulation made thereunder)". Subject to disclosure for certain purposes (see par. 4) no information obtained pursuant to any exercise of such powers shall be disclosed without the consent of the person from whom it was received and (if different) the person whom it concerns. The seven transcripts of evidence given by representatives from members' agents to the Neill Committee, when in possession of those members' agents, are not information obtained pursuant to any exercise of such powers. Paragraph 3 draws a distinction between persons (particularly Lloyd's) who obtain information pursuant to any exercise of such powers and the person from whom the information is received. (Compare in this connection s. 82 of the Banking Act, 1987.)

(ii) Mr. Cooke argued in the alternative that the words in par. 4/Schedule 1 -

. . .any inquiry before an independent tribunal, whether conducted under statutory powers or otherwise. . .

are wide enough to include High Court proceedings. It is common ground that the word "tribunal" includes a Court (see the New Shorter Oxford English Dictionary, which inter alia defines "tribunal" as "a court of justice"; Halsbury's Laws of England 4th ed. vol. 10 pars. 701-702 and Steel Company of Canada Ltd. v. Thomas Ramsay, (*150) Arbuthnott v. Fagan (C.A.) [1931] A.C. 270 at pp. 296-299). My preferred view is that the contents of the list in par. 4 serves to confirm my construction of par. 3 set out under (i) above. It enables information obtained to be disclosed for specified purposes appropriate in particular to Lloyd's. But I would if necessary in the alternative hold that the words in par. 4/Schedule 1 are wide enough to include High Court proceedings.

(iii) I do not consider that it was the intention of the Council of Lloyd's in making the 1993 Byelaw to preclude an order for discovery in civil proceedings by Names against members' agents in the circumstances of the present case. Further I do not consider that par. 3 has this effect.

(iv) The construction set out above is consistent with the provisions as to waiver by Names of confidentiality and as to production of documents in the members' agent's agreement for the 1990 year (Schedule 1 to the Agency Agreements Byelaw (No. 8 of 1988) - pars. 12 and 6.2r) and in the Agency Agreement for the 1987 to 1989 years (Schedule 1 to the Agency Agreements Byelaw (No. 1 of 1985) - pars. 7 and 19).

5. Thus neither the 1983 Byelaw nor the 1993 Byelaw preclude an order for discovery in respect of the seven transcripts.

Should discovery and production be ordered pursuant to O. 24, rr. 7 and 11?

Relevance alone, although a necessary ingredient, does not provide an automatic test for ordering discovery. The ultimate test is whether discovery is necessary for disposing fairly of the proceedings. The fact that documents are confidential is a factor to which regard should be had. The burden of satisfying

the Court that production for inspection is necessary is squarely upon the party applying (see Dolling-Baker v. Merrett, [1990] 1 W.L.R. 1205).

I have carefully considered the pleadings, the affidavit evidence referred to above and the submissions of the parties.

In par. 10 of her third affidavit on behalf of the members' agents Miss Jones says:

In general terms the topics discussed by Members' Agents with the Committee could be categorised as follows:

- the background to the formation of Feltrim Agency

- the information provided to Members' Agents by the Feltrim Agency as to the

nature of the business written by the Feltrim Syndicates, the reinsurance

programme of the Syndicates and the extent of the losses which the Syndicates

would and did suffer in the event of catastrophe

- Members' Agents understanding of concepts such as excess of loss business and the operation of the LMX Spiral

- the monitoring of Syndicates, including Feltrim, carried out by Members' Agents.

In par. 8 of his seventh affidavit on behalf of the plaintiff Names Mr. Connoley says:

(a) In the 1990 Action, the case against Members' Agents (insofar as it relates to matters governed by the new Agency Agreements pursuant to Byelaw No. 8 of 1988) rests on the Plaintiffs' contention that the Members' Agents acted negligently and in breach of contract in placing or continuing their respective Names as members of the Feltrim Syndicates for the 1990 underwriting year. Clearly any oral evidence given to the Loss Review Committee describing how the Members' Agents perceived the Feltrim Agency, and specifically the Feltrim Agency's apparent inability to predict the impact of the Piper Alpha loss, is clearly of great relevance to this allegation. As is clear, not only from the above-mentioned references in the Neill Report but also from paragraph 10 of Ms. Jones' affidavit, oral evidence on this point was almost certainly heard.

(b) According to Ms Jones, some of the evidence given by the Members' Agents related to "the monitoring of Syndicates, including Feltrim, carried out by Members' Agents. It is of great relevance to the 1990 Action precisely how the Members' Agents regarded the LUAA questionnaire circulated to them by the Feltrim Agency (see paragraph 9.167 of the Neill Report). This questionnaire, the Plaintiffs contend, showed that the Feltrim Agency's underwriting strategy involved excessive aggregate liabilities being left unreinsured. If the monitoring of the Feltrim Agency carried out by the Members' Agents (and described in their evidence to the Loss Review Committee) either disclosed, or should have disclosed, this apparent under-reinsurance, then this fact would be of great materiality to the 1990 Action.

(c) In relation to the 1987-1989 Actions, the information provided to Members' Agents by the Feltrim Agency as to the nature of the business written by the Feltrim Syndicates, the reinsurance programme of the Syndicates and the extent of the losses which the Syndicates would and did suffer in the event of catastrophe would be of great assistance in enabling the Plaintiffs to understand precisely what Mr. Fagan and Mr. Gofton Salmond's approach to underwriting and reinsurance of such underwriting in actual fact was. Clearly this issue lies at the heart of the 1987-1989 Actions. (*151) In my view the seven transcripts are plainly relevant to the issues in the 1987-1989 actions and to the issues in the 1990 Action.

The second category of topics discussed by members' agents with the Neill Committee (the information provided to members' agents by the Feltrim Agency as to the nature of the business written by the Feltrim Syndicates, the reinsurance programme of the syndicates and the extent of the losses which the syndicates would and did suffer in the event of catastrophe) is plainly relevant to both the 1987-1989 actions and the 1990 action. The third and fourth categories (members' agents' understanding of concepts such as excess of loss business and the operation of the LMX Spiral - the monitoring of syndicates, including Feltrim, carried out by members' agents) are plainly relevant to the 1990 action. In addition I accept the submissions as to relevance as set out in Mr. Connoley's seventh affidavit. The matters referred to above are directly relevant and fall well within the Peruvian Guano test.

I turn to consider whether the plaintiff Names have discharged the burden of satisfying the Court that production for inspection is necessary for disposing fairly of both the 1987-1989 actions and the 1990 action.

There is no plea of public interest immunity by the defendants.

I bear in mind that I am concerned with transcripts of evidence given to the Neill Committee pursuant to the Loss Review Byelaw. I also have regard to the terms of the 1983/1993 Byelaws. I further bear in mind the point made in par. 11 of Miss Jones' third affidavit "that evidence given to bodies such as Loss Review Committees should be as full and frank as possible".

In my view there is considerable force in the following submissions made by Mr. Cooke on behalf of the plaintiff Names:

(i) The Names do not have direct information and ought to be permitted in the interests of justice to see by way of discovery what was said by the representatives of the members' agents to the Neill Committee about their affairs;

(ii) The underwriting documents available to the Names on discovery will probably require explanation and will probably not reveal the whole story;

(iii) The transcripts will provide insight into Feltrim's stated aims and objectives and their explanations for the underwriting when those aims were not realised. They will show the extent to which Feltrim did or did not appreciate the degree to which the Names were exposed and the results of their own underwriting policies.

(iv) In par. 6 of his seventh affidavit Mr. Connoley says:

From the Neill report, it is clear that communications between the Feltrim Agency, and those Members' Agents whose Names had been placed on the Feltrim Syndicates, received considerable attention. I refer to paragraphs 5.32-5.35, 5.101-102, 7.13, 8.100-8.110, 9.162-9.200, 10.183-10.213, 11.102-11.116, 12.134-12.148 and 13.89-13.97 (see "MFC-6" pp. 13-103). I stress this is not a complete list of all references to Members' Agents in the Neill Report.

There is good reason to suppose that evidence of the meetings which took place and the oral explanations given will enable the plaintiff Names to advance their own case or damage that of the defendants and/or will lead to a train of inquiry which will have one or both of those two consequences.

I consider that in all the circumstances the plaintiff Names have discharged the burden of satisfying the Court that production for inspection is necessary for disposing fairly of both the 1987-1989 actions and the 1990 action.

I order that the seven transcripts be produced for inspection.

The Hon. Peregrine Simon, Q.C. and Mr. Christopher Butcher (instructed by Messrs. Elborne Mitchell) for the defendant members' agents; Mr. Mark Barnes, Q.C. (instructed by Messrs. Clifford Chance) for Feltrim Underwriting Agency Ltd., the managing agents; Mr. Jeremy Cooke, Q.C. and Mr. Marcus Smith (instructed by Messrs. Richards Butler) for the plaintiff Names.

The further facts are stated in the judgment of Lord Justice Staughton.

JUDGMENT

Sir STEPHEN BROWN, P.: I will ask Lord Justice Staughton to give the first judgment.

Lord Justice STAUGHTON: The plaintiffs in these two actions were members of Lloyd's who participated in the affairs of syndicates run by the first defendants, Feltrim Underwriting Agencies Ltd. They are in liquidation. The other defendants are members' agents at Lloyd's, who each acted for one or more of the Names and arranged their participation in the Feltrim syndicates. The case for the Names varies somewhat between the two actions. The first action relates to the underwriting years 1987 to 1989. It is said that in those years Feltrim were negligent in their underwriting, and that as the members' agents had agreed with the Names that they would do the underwriting, they are liable to the Names for what was negligently done. By contrast, in the second action relating to the 1990 year of account, it is said that the (*152) members' agents were negligent in placing or keeping their Names on the Feltrim syndicates.

There were very substantial losses made by the syndicates in those years, so much so that the Council of Lloyd's appointed a loss review committee. The chairman was Sir Patrick Neill, Q.C. Under Byelaw No. 8 of 1991 the Committee had power to require several classes of person to appear before them and give evidence in relation to the circumstances giving rise to the losses. Those classes included any member of Lloyd's and any underwriting agent. The members' agents sued in these actions did give evidence which was recorded in seven volumes of transcript; and copies of those volumes are now in their possession. The Names have applied under the Rules of the Supreme Court for discovery of the transcripts. This was refused by the members' agents, but an order for disclosure was made by Mr. Justice Cresswell on May 26, 1994. The members' agents applied for leave to appeal against that decision, which we granted. And we have now heard the appeal with the assistance of three Queen's Counsel, not to mention two very diligent junior Counsel, who have explored every point over the last day and a half.

There are three grounds upon which the members' agents say that the transcripts should not be disclosed. They are, first, statutory confidentiality, said to have been enacted in Byelaw 21 of 1993; secondly, that the documents are not relevant; and thirdly, that discovery of the transcripts is not necessary for fairly disposing of the cause or matter or for saving costs in terms of O. 24, r. 13.

The appeal is supported by Counsel for Feltrim. They also gave evidence to the loss review committee and will face a similar application in due course. I am not quite sure why "due course" has not yet happened, but no doubt there is anxiety not to do anything premature. So it seemed sensible to listen to their evidence and submissions at this stage. They support the first and third points in the argument for the members' agents, and they also rely on the doctrine of public interest immunity. That has been adopted by Mr. Simon for the members' agents, although in opening he said he was not relying on it.

(1) The Information and Confidentiality Byelaw No. 21 of 1993

This purported to have been made under Lloyd's Act 1982, a private Act of Parliament. It has not been disputed that the necessary power for the Council to make this byelaw is to be found in s. 6(2) of the Act and in Schedule 2, par. 25. There is also the Misconduct, Penalties and Sanctions Byelaw, No. 20 of 1993. This provides for various penalties for failing to comply with byelaws, including exclusion or suspension from membership of Lloyd's or a fine.

The relevant provisions of the Information and Confidentiality Byelaw 1993 are as follows:

3. Non-disclosure of information.

(a) the person from whom it was received;

and

(b) (if different) the person whom it concerns.

4. Disclosure of Information for certain purposes.

Notwithstanding the provisions of paragraph 3, or the terms of any undertaking whether express or implied, nothing shall prohibit the disclosure of information -

(a) for the purposes of:

(i) criminal proceedings,

(ii) any inquiry, or

(iii) disciplinary proceedings;

and then there are sub-paragraphs (b), (c), (d) and (e).

SCHEDULE 1. INTERPRETATION

In this byelaw -

"inquiry" means any inquiry before an independent tribunal, whether conducted under statutory powers or otherwise;

"disciplinary proceedings" means Lloyd's disciplinary proceedings under Lloyd's Acts or any byelaw made thereunder.

It is not enough to exempt a document from discovery that it was confidential: see the speech of Lord Wilberforce in Science Research Council v. Nasse, [1980] A.C. 1028 at p. 1065. Confidentiality is a relevant consideration when determining whether disclosure is necessary under O. 24, r. 13. But for a document to be exempt one of the existing heads of privilege or immunity must apply, or there must be legislation having the same result. Mr. Barnes, for Feltrim, gave a number of examples of statutes which make such provision. One that is perhaps the most obvious is the Legal Aid Act, 1988, s. 38.

I have some doubt as to whether par. 3 of the Information Byelaw 1993 is at all concerned with discovery in a civil action. It does not say that information or documents shall be exempt from disclosure or discovery. One would not normally expect to find such an exemption, which may affect people who are not

members of Lloyd's, in a (*153) private Act of Parliament. Suppose that there were divorce proceedings between a member of Lloyd's and his wife. Would he be exempt from disclosing information which he had obtained pursuant to any exercise of powers under the Lloyd's Acts? Indeed, the argument for the members' agents requires that he should not only be exempt but also prohibited from disclosing such information.

If, however, my doubts are unfounded and the prohibition in the byelaw does affect the obligation of discovery in a civil action, in my judgment it only applies to information which the member has obtained as the result of the exercise of powers under the Lloyd's Acts. It does not apply to information which he already had before those powers were invoked. That was the Judge's view, and I agree with it. It meets the mischief which the byelaw was no doubt intended to prevent: people should not be required or allowed to disclose that which they learn by the exercise of Lloyd's powers. So the members of the Neill Committee would not be allowed to disclose the transcripts. But there is no prohibition on the members' agents doing so.

The members' agents in the present case already had the information which was encapsulated in their evidence to the loss review committee. It is true that the proceedings of that committee placed it in a convenient package - the transcript produced by the shorthand writers. That is a bonus for the Names, who might otherwise have had to extract it from the members' agents by a most aborious collection of interrogatories, if at all. But I can see no reason to deny them that bonus.

Mr. Barnes, for Feltrim, referred to the two exceptions in par. 3 of the byelaw, that is to say, there could be disclosure with the consent of (a) the person from whom the information was received; and (b) (if different) the person whom it concerns. But if, as I think, par. 3 does not prohibit the disclosure of the information in question in this case, it is immaterial whether there would or might have been an exception in the case of consent by one or more parties.

It is unnecessary to express any concluded view on the other three arguments put forward on behalf of the Names. The first was that a civil action in the High Court is an "inquiry" within the exception in par. 4 of the byelaws. I do not find that at all plausible.

Secondly, it was argued that the Byelaw of 1993 is not applicable in these proceedings, since it only came into force on Oct. 1 in that year and the information was provided to the loss review committee before that date. There was an earlier byelaw, number 4 of 1983; but that would not prohibit disclosure of information in the present case, as it contained an exception of disciplinary, criminal or other proceedings" - quite apart from the fact that it has been revoked. There has been some discussion of accrued rights under the 1983 Byelaw. The members' agents had no relevant accrued right to confidentiality under the 1983 Byelaw, so they lost nothing when it was revoked and replaced by the 1993 Byelaw.

Mr. Cooke submits that the Names had an accrued right under the 1983 Byelaw to disclosure and should not be deprived of the benefit of it. The byelaws do not have anything as sophisticated as transitional provisions, but in my view none are necessary. The 1993 Byelaw, in my opinion, merits the description given by Lord Denman, C.J. in R. v. The Inhabitants of St. Mary, Whitechapel, (1848) 12 Q.B. 120 at p. 127.

. . .It is not properly called a retrospective statute because a part of the requisites for its action is drawn from time antecedent to its passing.

I would have held that the 1993 Byelaw was the relevant legislation in this case.

Thirdly, there was an argument from Mr. Cooke that the members' agents were obliged by the ordinary law of agency to disclose the transcripts to their principals as being documents relating to their principals' affairs. It is unnecessary even to express a tentative view on that point, although I must say that if the members' agents were right under the byelaw, I have difficulty in seeing how that point would have rescued Mr. Cooke.

(2) Relevance

This point is taken only in the first action. An applicant for discovery of a particular document under O. 24, r. 7 must make out a prima facie case that the document is relevant. He does that in terms of par. 3 of the rules which requires an affidavit stating the belief of the deponent that it -

. . .relates to one or more of the matters in question in the cause or matter.

Once the applicant has done that, it is for the respondent to say on oath, if he can, that the document is irrelevant. He, after all, has got it. In the ordinary way the respondent's affidavit must be accepted, unless the Court itself inspects the document.

Here there is, to my mind, plainly a prima facie case of relevance; and there is no assertion on oath by the members' agents that the documents are not relevant. The furthest that their solicitor goes is to say in an affidavit sworn on Apr. 26, 1994:

The Members' Agents do not accept that the transcripts of their evidence to the Committee are of relevance to the 1987-1989 action. The Plaintiffs have not made out any basis for contending that the documents are relevant to that action. (*154)

If we were required to go further into relevance, it seems to me highly likely on the detailed arguments that we have heard, that there will be a good deal of relevant material in the transcripts.

(3) Necessity

O. 24, r. 8 provides that the Court shall not order discovery, . . .if and in so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs.

Rule 13, on the other hand, provides that:

(1) No order for the production of any documents for inspection. . .shall be made. . .unless the court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.

Lord Justice Parker in Dolling-Baker v. Merrett, [1990] 1 W.L.R. 1205 at p. 1209 drew attention to the contrast, and said that the burden of proof when resisting discovery was on the respondent, but on the applicant when asking for inspection. He found that there was good reason for the distinction. We have not been invited to disagree with that view, nor has it been argued that we would be entitled to do so.

There are many classes of case where discovery - or inspection for that matter - is not necessary. There are even some where it is used as a weapon of oppression, to increase the costs and delay the trial. Mr. Barnes was, in my judgment, quite right when he said that much of the material currently disclosed on discovery is of little more value than Peruvian Guano. But the present case is not of that kind. It is one where discovery by the defendants is essential. The Names have handed all their substance to the members' agents, and have received only such information as to their fortunes as the members' agents may from time to time have chosen to reveal. It is a classic case for discovery.

For the members' agents it is said that a vast amount of documents have been disclosed already. I do not doubt that for one moment. But who are we to say that the transcripts will not do much to ensure the fairness of the proceedings? Seeing that they are likely to encapsulate the members' agents account of what happened, set out under the supervision of an expert chairman, I would expect them to be worth more than all the other documents put together. So I would find them to be necessary for fairly disposing of the case and for saving costs.

(4) Public interest immunity

Mr. Barnes submits, firstly, that this point does not have to be taken by a Minister or supported by a certificate. For that he has the authority of Lord Reid in R. v. Lewes Justices, ex parte Secretary of State for the Home Department, [1973] A.C. 388 at p. 400.

A Minister of the Crown is always an appropriate and often the most appropriate person to assert this public interest, and the evidence or advice which he gives to the court is always valuable and may sometimes be indispensable. But, in my view, it must always be open to any person interested to raise the question and there may be cases where the trial judge should himself raise the question if no one else has done so.

Secondly, Mr. Barnes submits that it does not matter that the point was not taken below. Just as the trial Judge can take it of its own motion, so can the Judges of this Court. Thirdly, he says the point is in the notice of appeal. For myself I do not think it is, but that does not matter for the same reason.

But is there a public interest, and should it lead to immunity? We have asked what is the motive for this procedure of setting up a loss review committee. One suggestion, and indeed the only one that has been put up, is that the procedure is designed to assuage the anxiety and possibly anger of Lloyd's Names who have lost a great deal of money and may have little means of discovering how that has come about. If that be the reason for the procedure, it does not suggest that there is a public interest which requires immunity from discovery, or indeed any public interest at all.

The outline argument for Feltrim put two points in support of immunity. The first is candour. That was a good deal decried in the Burmah Oil Co. Ltd. v. Governor & Company of the Bank of England and Another, [1980] A.C. 1090 at p. 1132, but that was in relation to the communications of civil servants. It was said with great confidence by the House of Lords that they would be just as candid if their documents were exposed to the public view as if they were not. But it is another question whether the witnesses and such like will be candid if they know that their evidence will be exposed to the public view. I can see that there is a question of candour in this case. But I cannot see that there is any public interest that witnesses should give their evidence candidly in this internal Lloyd's type of inquiry.

Secondly, it is said that information acquired compulsorily for one purpose should not be used for another. There is indeed such a principle. It is to be found in the case of Lonrho plc v. Fayed and Others, [1994] 2 W.L.R. 209. It is connected with, or part of the doctrine of public interest immunity. But it is not an absolute rule, it is something to be weighed in the balance. In my judgment, it does not apply at all here, because the members' agents did (*155) not obtain the information which they are now asked to disclose by any compulsory powers. They had it already. This is the same point as has already led me to conclude that the Byelaw does not prohibit disclosure.

On a wider front I must say that I find this case rather remote from the doctrine of public interest immunity. In the case of Science Research Council v. Nasse, [1980] A.C. 1028 at p. 1087 Lord Scarman said:

For myself, I regret the passing of the currently rejected term "Crown privilege". It at least emphasised the very restricted area of public interest immunity. As was pointed out by Mr. Lester Q.C., who presented most helpful submissions on behalf of the two statutory bodies as well as specifically for the appellant, Mr. Vyas, the immunity exists to protect from disclosure only information the secrecy of which is essential to the proper working of the government of the State. Defence, foreign relations, the inner workings of government at the highest levels where ministers and their advisers are formulating national policy, and the prosecution process in its pre-trial stage are the sensitive areas where the Crown must have the immunity if the government of the nation is to be effectually carried on. We are in the realm of public law, not private right.

Then at p. 1088:

"Public interest immunity" is, in my judgment, restricted to what must be kept secret for the protection of government at the highest levels and in the truly sensitive areas of executive responsibility.

. . .

It does not follow that, because we are outside the field of public interest immunity, the confidential nature of documents is to be disregarded by the court in the exercise of its discretionary power to order discovery of documents.

So there is still discretion. But the Judge exercised his discretion in this case, and no fault in the way he exercised it in that respect has been suggested.

It may well be that doctrine of public interest immunity goes slightly wider than Lord Scarman suggested. There are cases such as R. v. Chief Constable of West Midland, ex parte Wiley, [1994] 1 W.L.R. 114, where it was held, following earlier authority, that the evidence of witnesses in a police complaints inquiry was the subject matter of public interest immunity. But it certainly does not go as far as this case. I would dismiss this appeal.

Sir STEPHEN BROWN, P.: I agree.

Lord Justice ROSE: I agree.

[Order: Appeal dismissed with costs. Leave to appeal to the House of Lords refused.]

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