Arbitration — Rent review — Whether subpoenas duces tecum requiring experts to produce reports used in rent reviews of properties other than the subject property should be set aside
In the course
of a rent review arbitration between the parties, the plaintiff landlords’
expert, M, gave evidence about the changes in the office market in relation to
the review date of April 1991 and was asked questions in cross-examination
concerning evidence he had given on behalf of BT, a tenant, in two earlier and
separate arbitrations relating to properties known as Euston Tower and Delta
Point. Following that cross-examination the respondent tenant issued two
subpoenas duces tecum: one to M to produce his proofs in the Euston
Tower and Delta Point arbitrations and the other to J, the respondent’s own
expert, to produce M’s Delta Point proof, J having been the arbitrator in the
Delta Point arbitration. M and the plaintiffs applied by separate summons to
set aside the subpoenas addressed to M and to J. By the hearing J had complied
with the summons addressed to him. M advanced the confidentiality of the
proofs. BT had indicated in respect of the Euston Tower proof that it was
confidential to them and they would not have authorised the release of the
whole document and regretted releasing an extract provided to the respondents.
relating to the Euston Tower was also dismissed, but M’s summons to set aside
the subpoena addressed to J in relation to the Delta Point proof was allowed.
M, as a witness, had standing to object to the subpoenas addressed to him and
to J. The plaintiffs had no standing to object to the subpoenas. Having regard
to sections 4 and 5 of the Criminal Procedure Act 1865 and section 3(1)(a)
of the Civil Evidence Act 1968 a prior inconsistent statement, which is not
admitted by a witness in cross-examination, may be put in evidence and is
admissible. If a witness were proved to have expressed himself in a materially
different sense when acting for different sides, that would be a factor which
should be brought out in the interests of individual litigants involved and in
the public interest. There was a legitimate basis for admitting the Euston
Tower proof of M, which outweighed objections on grounds of privacy and
confidentiality. The same considerations did not apply to the Delta Point proof
because there were no particulars of possible disparities; the subpoena
relating to this proof was no more than a fishing expedition and was not
necessary for fairly disposing of the arbitration. It was not too late to set
aside the summons addressed to J.
The following
cases are referred to in this report.
Boeing Co v PPG Industries Inc [1988] 3 All ER 839 CA
Dolling-Baker v Merrett [1990] 1 WLR 1205, CA
Hassneh
Insurance Co of Israel v Mew [1993] 2
Lloyd’s Rep 243
Macmillan
Inc v Bishopsgate Investment Trust plc
[1993] 1 WLR 1372; [1993] 4 All ER 998, CA
Marcel v Commissioner of Police of the Metropolis [1992] Ch 225;
[1992] 2 WLR 50; [1992] 1 All ER 72, CA
North
Australian Territory Co v Goldsborough, Mort
& Co [1893] 2 Ch 381
Oxford
Shipping Co Ltd v Nippon Yusen Kaisha ‘The
Eastern Saga’ [1984] 3 All ER 835; [1984] 2 Lloyd’s Rep 373
R v Cheltenham Justices ex parte Secretary of State for Trade [1977]
1 WLR 95; [1977] 1 All ER 460, DC
R v Clowes [1992] 3 All ER 440
R v Lewes Justices, ex parte Secretary of State for the Home
Department [1972] 1 QB 232; [1971] 2 WLR 1466; [1971] 2 All ER 1126, DC
R v Saunders unreported February 9 1990
Science
Research Council v Nassé [1980] AC 1028;
[1979] 3 WLR 762; [1979] 3 All ER 673, HL
Sphere
Drake Insurance plc v Denby unreported July
28 1991
Sunderland
Steamship P&I Association v Gatoil
International Inc ‘The Lorenzo Halcoussi’ [1988] 1 Lloyd’s Rep 180
This was the
hearing of summonses issued by the plaintiffs and Richard Main frics to have set aside subpoenas duces
tecum directed to Mr Main and Peter Jones frics
to produce, in an arbitration between the plaintiffs, London & Leeds
Estates Ltd, and the defendants, Paribas Ltd, proofs of Mr Main which he had
used as a witness in two earlier arbitrations between different parties.
Michael Barnes
QC (instructed by Titmus Sainer Dechert) appeared for the plaintiffs; Leolin
Price QC (instructed by Gouldens) appeared for Richard Main; Timothy Fancourt
(instructed by Linklaters & Paines) represented the defendants.
Giving
judgment, Mance J said:
These applications raise interesting questions regarding the use in a current
arbitration of subpoenas duces tecum issued pursuant to section 12(4) of
the Arbitration Act 1950, with a view to obtaining an expert witness’ proofs
produced in evidence in two previous arbitrations.
There is
currently in course a rent valuation arbitration between London & Leeds
Estates Ltd, as landlords of premises of 65,000 sq ft at 33 Wigmore Street,
London W1, and Paribas Ltd, as tenants. The review date is April 8 1991. The
central issue is what would the open market rental valuation of the premises
have been on a letting by a hypothetical willing landlord to a hypothetical
willing tenant on that date.
The landlords’
valuation is a multiple of over twice the tenants’. The sums in issue are very
large. The arbitration has already occupied 22 days. The landlords’ evidence is
not yet concluded. Mr Richard Main [frics],
a principal valuation witness called by the landlords, is under
cross-examination by Hazel Williamson QC, who is leading Mr Timothy Fancourt,
who appeared before me, both of them being instructed by Linklaters &
Paines. The central issue in the arbitration has spawned subsidiary issues
including (quoting Mr Fancourt’s skeleton);
(i) The
extent to which the market in West End offices has fallen and the rate at which
it was falling on August 8 1991;
(ii) whether
or not an actual tenant in the office market in August 1991 would have been
willing to take a new lease of 33 Wigmore Street had it been available;
(iii) the
market’s general perception of rental levels at the time, and hence the true
market rent.
Mr Main in
November 1993 prepared an expert’s report which has been used with some
amendment as his evidence in chief in the arbitration. In it he addresses a
number of issues including, in section 12, the subject of ‘Market Background:
Supply and Demand’. In his section headed ‘Terms of Reference’, he notes that:
‘Charles Okin [frics] of Edward
Charles & Partners will give additional evidence on the market place and 33
Wigmore Street’. I understand that Mr Okin in fact has done this. Mr Main
commences his section 12 by saying:
Charles Okin
will give specific evidence in this regard but my experience of the period
leading up to the Date of Review was that the essential characteristics of the
West End office market were
(i) an
increasing supply but at a reducing rate
(ii) rental
values had begun to fall
(iii) a
feature of new lettings in the open market was a ‘face’ or ‘headline’ rent plus
incentives in the form of rent free periods stepped rents and or capital
contributions
(iv) very few
new construction starts and a declining ‘pipeline’
Despite his
reference there to to Mr Okin, Mr Main goes on to give over two pages of
obviously important evidence including the following further paragraph:
12.3 During
my professional career I have personally experienced several periods of
economic difficulty which have adversely affected the property market. These
include the period during the mid 1960s of the Wilson Labour Government when
Roy Jenkins’ tough economic measures were introduced; the secondary banking
crisis and collapse in the property market in 1974 to 1976; the early 1980s
during the early period of the Thatcher Conservative Government and of course
the difficulties of the last three years.
Certain
characteristics emerged during those periods as far as the office market is
concerned namely,
(i) They
began with a period of reducing take-up and increasing supply but initially
little change in quoting terms;
(ii) they
then moved to a period where quoting terms were reduced in line with the
market;
(iii) they
next moved to a point where quoting terms anticipated deteriorating market
conditions; and
(iv) finally
there is a phase rarely seen but when those with properties to dispose of move
into the ‘damage limitation’ period where they are primarily interested in
having premises occupied and the outgoings paid rather than the finer terms of
the deal.
In my
opinion, from my own research and knowledge, supported and confirmed by Mr
Okin, the West End office market at the Date of Review was moving through the
first phase I have identified into the second phase, although further
deterioration in market conditions was anticipated. In my view, however, whilst
the hypothetical landlord would have been aware that change was taking place it
is unlikely that he would have believed at the Date of Review that market
conditions would have been as severe as they were a year later.
In joint
counter-representations with Mr Okin, before giving oral evidence in the
arbitration, Mr Main altered the words ‘was moving’ to ‘had moved’. I was told,
and I can understand, that a major question in the present arbitration is
whether that alteration went far enough or whether the real position is not
that the market in fact moved to stage (iii).
The
surveyors/valuers acting for Paribas Ltd in the arbitration are a Mr Peter
Jones [frics] and a Mr Spencer
King [frics] of DTZ Debenham
Thorpe. Mr Main, as a surveyor/valuer, like others in his profession, is
frequently engaged as an expert in rent valuation arbitrations. In a phrase
which lacked perhaps some of his customary persuasiveness of expression Mr
Leolin Price QC referred to Mr Main’s belief that the present applications were
of utmost importance ‘for quite a small coterie of rent review experts’. Two
previous arbitrations are relevant for present purposes although neither of them
concerns premises relied on by either side as comparables in the present
arbitration.
First, an
arbitration between the Secretary of State for the Environment as landlords and
British Telecommunications plc (‘BT’) as tenants in respect of premises of 150,000
sq ft in Euston Tower, London NW1, in which a Mr John Guise [arics] of Chestertons acted as
landlords’ expert and Mr Richard Main and also Mr Okin acted as tenants’
experts. BT’s counsel in that case was, as it happens, Hazel Williamson QC. The
rent review date was March 25 1991. Mr Main’s expert report, again used as
evidence in chief, was dated March 1993.
Second, an
arbitration between unidentified landlords and once again BT as tenants,
relating to premises of some 246,000 sq ft at Delta Point, Croydon. Mr Main was
again expert for BT. The arbitrator was Mr Peter Jones, Paribas Ltd’s expert in
the present
date is unknown although the likelihood is that it was in 1991 and the
arbitration evidently involved examination of the state of the London property
market in 1991: see para 5 of Mr Main’s affidavit of May 17 1994 and paras 2
and 4 of Mr Jones’ second affidavit.
Paribas Ltd
have obtained certain information about Mr Main’s proofs of evidence in these
two previous arbitrations. First, in respect of Euston Tower, BT released to Paribas
Ltd what Mr King of DTZ Debenham Thorpe describes as ‘several pages … which I
now recognise as section 12 of Mr Main’s proof of evidence for the Euston Tower
arbitration’ or what Mr Main says BT have subsequently described as ‘only four
pages’. Section 12 of that proof is, in fact, seven pages long and it is not
therefore clear whether what has proved the most important page, p51, was in
fact released by BT.
However, Mr
King went on to telephone Chestertons, who had acted for the Secretary of State
for the Environment, as landlords in the Euston Tower arbitration, and asked
whether he would make Mr Main’s and Mr Okin’s proofs available. This
Chestertons did by allowing Mr King to collect the originals. Mr King had these
copied and returned the originals to Chestertons. A full copy of Mr Main’s
proof in the Euston Tower arbitration has thus been exhibited and referred to
before me; although Mr King and Paribas Ltd say that they understood that both
it and the previous pages were received from Chestertons and from BT
respectively, by implication on terms that they would not be directly employed
in the present arbitration without the consent of those providing the same and
the author, Mr Main. Hence, the fact that Miss Williamson has not directly
deployed the Euston Tower proof in the current arbitration.
Mr Gillies of
BT was, however, told by Mr King of the intention to use the proof in
proceedings before me, although it is possible that Mr Gillies had in mind only
the pages which he had supplied. He took no objection although BT themselves
and solicitors, on their behalf, have later said that they would not have
consented to any release of any or all of the proof.
At the present
point, I need quote only para 12.6 of the proof where, after dealing in para 12.5
with the after-effects of the Iraqi invasion of and withdrawal from Kuwait, Mr
Main said:
12.6 In
summary the economic, political and market backgrounds during the six month
period leading up to the Review Date indicated a deteriorating and volatile position
reflecting the growing recession that had been worsened by the sustained high
level of interest rates from October 1990 to October 1991 and fuelled by the
Gulf War and the uncertain political situation with the prospect of a General
Election and the possibility of a changing government.
This unique
cocktail of events led to great uncertainty and a general lack of business
confidence as a true recession became a harsh reality. In the property market
there was choice, the tenant was at last king and rental and capital values
were falling.
All these
factors and influences would have affected the hypothetical tenant when
formulating its bid and also be reflected in the response from the hypothetical
tenant when receiving it.
Second, in
respect of Delta Point Mr Jones, as arbitrator, had detailed knowledge of Mr
Main’s proof. He was, he says, fully aware of arguments on confidentiality and
the sensitivity of the information and so, he says, did not reveal the contents
of Mr Main’s proof. But he adds:
My only
statement has been to say to Miss di Iorio, upon receipt of Mr Main’s Proof of
Evidence in the 33 Wigmore Street Arbitration, [referring to the contents of Mr
Main’s proof of evidence in the Delta Point arbitration] that that is not what
Mr Main said in Delta Point.
He also says
in his second affidavit
One matter I
considered was whether or not the Delta Point proof of evidence was relevant to
the 33 Wigmore Street arbitration. My view was, and is, that some of the views
expressed by Richard Main in the Delta Point arbitration are relevant to the 33
Wigmore Street Arbitration.
Mr Price QC,
for Mr Main, submitted that the circumstances thus revealed in respect of the
Delta Point arbitration are:
… remarkably
troublesome for the privacy of arbitrations if what has happened is allowed to
pass without critical comment.
I concur in
this. To ‘tip the wink’ as Mr Jones did was as much a breach of his arbitral
duty and of confidence and privacy as any more explicit revelation of what Mr
Main may have said.
While Paribas
Ltd regarded itself as precluded from direct use, in the present arbitration,
of this information obtained in this way, it did through counsel make use of
one phrase from the Euston Tower proof as appears in the following exchange on
April 27 1994. That is at pp71C to 72A:
Q. And we get
to the point in August where at that stage, having exposed the market, a
landlord takes the best deal that is available at that stage, and the tenant is
the tenant who produces the best offer at that stage.
A. Yes.
Q. It is
right, is it not, I think you would agree, that for several months already it
has been perceived that it is a tenant’s market?
A.Yes.
Q. In fact,
the position is that as long previously as March 1991 we had a position where
tenants regarded themselves as at last being king in the marketplace?
A. Did I say
that?
Q. Not here.
A. Where did
I say it?
Q. You gave
evidence in a Euston Tower arbitration. Do you recall that?
A. You were
counsel for the party I gave evidence for.
Q. Do you
remember giving that evidence?
A. I shall
have to look it up, but, if you say I gave it, I gave it.
Q. Do you
accept that the position was that the perception of tenants in the market at
that stage, in March 1991 — This is Euston Tower, which is in the West End
market?
A. I have
some difficulty commenting on Euston Tower because there are matters
outstanding on that, and, second, I do not have anybody’s consent to talk about
that.
There ensued
argument during the course of which Mr Main said at p72F:
I am not
trying to duck what I have said. I need to read it and look at it. You plucked
something out of mid-air and I need to go back and look at it.
Further
argument ensued, including argument about Miss Williamson’s position, during
which the arbitrator eventually and sensibly said at p74H:
The
Arbitrator: … Dare I suggest that we proceed and, if Miss Williamson thinks
that she has some point to make, then other procedures will have to be adopted
to get consent to bring it before me but, if it is just an opinion, I would have
thought that we could proceed. In other words, your opinion as an expert would
help me, Mr Main, as to what you felt the market was at the time. I think that
is what was being asked and it would help me a great deal.
A. I am happy
to do that and to look at the March 1991 situation. I am happy to ask whether I
can comment on it. Basically, I do not recall exactly what was said in relation
to a much larger building in a slightly different location, but I may well have
said something like that. If you are asking me about the market place in August
1991, the tenant was certainly perceiving himself to be in a strong position
and was, in a number of cases, in a strong position.
I am not
saying that is not the case. What I am saying is, basically, at that time, landlords
were in varying different positions. Some landlords believed some things and
others did not, and that often reflected their various circumstances …
All I am
saying is that it is not every landlord who was necessarily prepared to throw
in the towel at that particular stage. He was prepared to concede things, but
not necessarily to throw in the towel, and I think the idea that in the market
in these sorts of buildings, in these sorts of locations, landlords were on
their knees is not right. Perhaps, with the benefit of hindsight, it might have
been better if some of them had been, and I think Mr Francklin made that sort
of point. The position in August 1991 was, as I think he said, that they did
not see the nose dive that the market was going to take. I know that
commercially. One certainly would not have perceived how far the market was
going to fall over the last three years, otherwise one might have planned one’s
commercial circumstances in practice slightly differently. I am sure you know
what I mean.
Miss
Williamson: In purely general terms, is it or is it not your view that in
March, 1991, a few months earlier, when it came to negotiations of substantial
lettings, at any rate, the tenant was king in the market place?
A. If you
were negotiating 150,000 square feet in Euston Tower, the answer is yes.
On the next
day, April 28 1994, Paribas Ltd issued one subpoena addressed to Mr Main
relating to his Euston Tower and Delta Point proofs and then, or at some other
date, another addressed to Mr Jones, relating to Mr Main’s Delta Point proof.
The applications before me consist of: (a) a summons by Mr Main dated May 18
1994 to set aside the subpoenas addressed to him in respect of both
proofs; (b) a summons by Mr Main, dated July 8 1994, to set aside the subpoena
addressed to Mr Jones in respect of the Delta Point proof; and (c) a summons by
London & Leeds Estates Ltd dated July 12 1994 to set aside both the
subpoena addressed to Mr Main and the subpoena addressed to Mr Jones. I should
say that in respect of the subpoena addressed to Mr Jones, he, after taking
legal advice, took the view that he should comply and attended before the
present arbitrator on May 26 1994 with the documents. Counsel for London
& Leeds Estates Ltd objected to the Delta Point proof ‘being put in
evidence’ saying that:
… although Mr
Jones had not made any application to have the subpoena set aside and was
prepared to comply with the subpoena, its propriety and the relevance of the
document might be open to question and it should be kept in Mr Jones’s hand
until any issue as to its admissibility had been resolved.
Counsel for
Paribas Ltd argued that, as the subpoena was returnable on that day, Mr Jones
was obliged to produce the document and that it should be kept by the
arbitrator, saying that the issue of admissibility could be dealt with by the
arbitrator in due course. The arbitrator then agreed that he would not read the
Delta Point proof until such time as the issue of its admissibility or
otherwise had been dealt with either at the resumption of the arbitration or at
court.
The present
situation is acknowledged by Mr Michael Barnes QC, for London & Leeds
Estates Ltd, and Mr Fancourt for Paribas Ltd as most unusual. I have little
doubt Mr Price also concurs. It arises because Paribas Ltd have by one means or
another obtained and have been able to put before me information about prior
statements relating to private arbitrations. BT are, I understand, aware of the
position regarding both prior arbitrations and they and solicitors on their
behalf have, as I have mentioned, written to Mr Main in June 1994 in
respect of Euston Tower saying that his proof is confidential to BT and that
they would not have authorised release of it and regretting the release of an
extract.
The landlords
in the prior arbitrations are not, so far as appears, aware of the present
position. There has been no application by the landlords or by BT as tenants in
the prior arbitrations to set aside either subpoena in the present arbitration.
Questions have therefore arisen as to the standing of London & Leeds
Estates Ltd to apply to set aside both subpoenas and as to the standing of Mr
Main to apply to set aside the subpoena addressed to Mr Jones, with which Mr
Jones is prepared to comply, as well as a number of other questions relating to
the principles on which subpoenas may be issued and resisted.
It was common
ground that a subpoena duces tecum may be issued only in circumstances
where the fair disposal of the current proceedings justifies it and that the
onus is on the person issuing the subpoena to demonstrate that this is the
case. Such a subpoena is not a means of obtaining documents which are no more
than relevant to issues in a sense which would make them discoverable inter
partes. Authority for these propositions is to be found in the Court of
Appeal decision in Macmillan Inc v Bishopsgate Investment Trust plc [1993]
1 WLR 1372. Normally any objection for a subpoena comes from the person to whom
it is addressed: see Boeing Co v PPG Industries Inc [1988] 3 All
ER 839 per O’Connor LJ at p842H–J where he said:
The fact that
in the ordinary course of events the opposite party cannot and does not apply
to the court to set aside a subpoena means that the party’s right course there
is to object to the production and admissibility of the documents when the
subpoena is complied with in court.
However, there
are circumstances in which a third party, that is someone other than the party
issuing the subpoena or to whom it is directed, may apply to set it aside. An
example is the owner of documents who has been subpoenaed while the documents
are being held in somebody else’s hands: see Marcel v Commissioner of
Police of the Metropolis [1992] Ch 225 per Dillon LJ at p253B–C. In
that case the police had seized and held documents belonging to the plaintiffs.
Dillon LJ said:
It has been
submitted that only a person served with a subpoena duces tecum can
apply to set it aside. But for my part I can see no reason why if a subpoena duces
tecum is served on A to produce documents in his possession which are
actually B’s documents, B should not have the right, just as much as A, to
apply to set aside the subpoena or prevent the production of the documents if B
has valid grounds for doing so.
Dillon LJ also
said at p259A–B:
Even where a
subpoena has been served, the police should not disclose seized documents to
the advisers of a party to civil proceedings in advance of the attendance at
court required by the subpoena, unless at the least the police have first given
to the true owner of the documents notice of the service of the subpoena and
of the wish of the police to produce the documents in advance of the
attendance at court required by the subpoena, and have given the true
owner a reasonable opportunity to state his objections, if any, to that course.
On the facts
of Marcel any objection failed because the owners could not establish
any valid ground on which they themselves could have resisted a subpoena had
the documents been in their own hands. It would of course have been different
if the documents had been privileged in their hands. Another situation in which
it seems to me that the third party may intervene is where confidential or
private documents are subpoenaed. The existence of confidentiality is not an
absolute bar to the enforcement of the production of documents by subpoena.
However, it is a relevant consideration in deciding whether such a subpoena is
necessary for the fair resolution of the proceedings and should be permitted:
see Hassneh Insurance Co of Israel v Mew [1993] 2 Lloyd’s Rep 243
per Coleman J at pp250–251, citing Science Research Council v Nassé
[1980] AC 1028, at pp1065, 1077 and 1089.
It might be of
no interest to a person subpoenaed to raise considerations of confidentiality
or privacy and in a proper case I would think that the person entitled to the
confidentiality or privacy may therefore be permitted to intervene. In this
connection, I note that in Sphere Drake Insurance plc v Denby, an
unreported decision on July 28 1991 of Judge Kershaw QC, sitting as a deputy
judge of the High Court, subpoenas were addressed by the defendants to the DTI
and the Corporation of Lloyd’s in respect of statements made by four potential
witnesses for the plaintiffs. The DTI and Lloyd’s as the persons subpoenaed
objected, but three of the four witnesses were also allowed to intervene to
raise objections themselves. The interviews which they had had with the DTI
inspectors and with those conducting a Lloyd’s inquiry, took place in
circumstances which involved at least qualified undertakings of confidentiality
and privacy towards the witnesses.
The present
applications raise the question whether a witness may claim a like interest in
respect of a proof of evidence given and used by him in the course of a
previous arbitration. There is no doubt that the parties to such a previous
arbitration owed each other a duty of confidence and privacy in respect of the
course of and evidence given during it: see Hassneh Insurance Co of Israel
v Mew, cited above. There is also no doubt that an expert such as Mr
Main owes to those instructing him, in the case of the previous arbitrations
here, BT, a duty to keep confidential the evidence which he gave in such
previous arbitrations. The confidential nature of a private arbitration means,
in my judgment, that Mr Main must also owe a like duty to the other party to
such an arbitration.
The present
issue is, however, whether the parties to an arbitration owe any duty of
confidence or privacy to a witness such as Mr Main. On this no authority
directly in point was cited. Mr Price for Mr Main relied heavily on the words
in the evidence showing that Mr Jones and Mr King of DTZ Debenham Thorpe
understood that they were given sight of part or all of Mr Main’s Euston Tower
proof by BT’s in-house surveyor and Chestertons on the basis that no use would
be made thereof in the present arbitration without further consent from them
and Mr Main. The attitude of BT’s in-house surveyor or Chestertons is not,
however, a very sure guide to the boundaries of confidence or privacy or of
great assistance to Mr Price’s submissions, since they were in each case
prepared to release the material: (a) without the consent of the other party,
both being on different sides in the Euston Tower arbitration; and (b) without
Mr Main’s consent. Further, the authorities are full of statements relating the
element of confidentiality in cases of private arbitration to implied agreement
between the parties: see, for example, Oxford Shipping Co Ltd v Nippon
Yusen Kaisha ‘The Eastern Saga’ [1984] 2 Lloyd’s Rep 373 at p379; Dolling-Baker
v Merrett [1990] 1 WLR 1205, at pp1213F–1214A; and Hassneh (supra)
at pp246 right to 247 left.
None of these
authorities deals with the need to consider the rights of a witness which could
arise if duties of confidentiality or privacy were owed to him or her. Despite
this I see some force in the submission that it is implicit in the nature of
private consensual arbitration that witnesses who give evidence, even paid and
professional experts, will within certain limits be accorded the benefits of
the privacy which overall attaches to this type of arbitration. The privacy of
arbitration is likely to be a factor in persuading many witnesses to give
evidence and a factor in encouraging them to speak, or in the case of experts
enabling them to obtain permission from other principals to speak, about
matters within their experience about which otherwise they might be hesitant or
unable to speak. Further, in the case of Mr Main’s proofs there is another factor
since it is common ground that he retains copyright in his proofs. Mr Fancourt
pointed out that by the Copyright Designs and Patents Act 1988, section 45(1)
creates an express exception to copyright protection in the case of anything
done for the purposes of ‘judicial proceedings’. Mr Price retorts that judicial
proceedings do not include arbitration proceedings.
I doubt
whether Mr Price is right in this, since judicial proceedings are defined by
section 178 of the Act as including ‘proceedings before any court, tribunal or
person having authority to decide any matter affecting a person’s legal rights
or liabilities’, which on its face embraces arbitration. I also note that the
predecessor section, section 48(1) of the Copyright Act 1956, referred to ‘any
court, tribunal or person having by law power to hear, receive and examine
evidence on oath’, which, in the light of section 12(3) of the Arbitration Act
1950, would include an arbitrator. But even assuming that Mr Main cannot directly
complain of breach of copyright by persons proposing to copy and use his
previous proofs in connection with the present arbitration, it seems to me,
that Mr Main’s general copyright interest, coupled with the generally private
nature of the previous arbitrations in relation to which he gave his proofs, do
confer on him a sufficient interest to enable him to intervene and complain if
he sees that a subpoena is being issued, which is on the face of it designed to
compel the production and admission of one of his proofs in different
proceedings. The position would be a fortiori of course if there had
been or would be a breach of copyright involved in the circumstances leading up
to the subpoena.
There must,
however, be limits to any such right of privacy in the witness as well, I
think, as to any copyright which Mr Main may claim in his proofs, just as it
has been regarded as necessary to put limits on the confidentiality or privacy
upon which the parties to an arbitration may insist: see again Hassneh (supra).
An expert witness must, for example, accept that one or other of the parties to
the arbitration may either be compelled or in its own interests may require to
deploy in other context proofs or other material deriving from the arbitration:
see Hassneh at pp248–9. The witness’s interest must necessarily be
subsidiary to such considerations.
The other
issue raised by the present applications is whether London & Leeds Estates
Ltd as claimants in the present arbitration have standing to object to the
subpoenas addressed to Mr Main and Mr Jones. They can claim no confidentiality
or privacy in respect of the previous arbitrations or in respect of Mr Main’s
proofs. Their objections are sought to be made solely in their capacity as
opposite parties in the present arbitration. They say that the subpoenas
addressed to Mr Main and Mr Jones are irregular and fishing, that they will or
may introduce into the present arbitration material which will or may add
unnecessarily to its length and complexity and that they are not necessary for
its fair disposal.
In relation to
these objections, the starting point is that the subpoena process gives no
opportunity to the opposite party to litigation to review the propriety of a
subpoena. Further, if a general right were recognised in an opposite party to
raise such objections, it would encourage ancillary litigation in relation to
subpoenas, whether in aid of arbitration or court proceedings. A party to
litigation is generally exposed to whatever material the other party can procure
and deploy in evidence or in cross-examination. The subpoena adds relatively
little to this exposure. The arbitration tribunal or court hearing the
substantive dispute will permit only the use of material which can properly be
deployed in accordance with the rules governing evidence and cross-examination.
These appear to me in general at least sufficient safeguards.
Approaching
the present applications in the light of these conclusions, first, there is no
doubt about Mr Main’s standing to object to the subpoenas addressed to him in
respect of his Euston Tower and Delta Point proofs. Second, I accept Mr Main’s
standing to object to the subpoenas addressed to Mr Jones in respect of Mr
Main’s proof in the Delta Point arbitration and, so far as necessary, I shall
order that he be joined as a party to the present applications before me under
Ord 15, r6(2). Third, I do not accept that London & Leeds Estates Ltd have
any standing to object to the subpoenas addressed to either Mr Main or Mr
Jones.
I turn,
therefore, to consider the merits of the objections raised in relation to the
subpoenas. They involved a number of submissions.
First, there
was no basis upon which Mr Main’s proofs would be or could become admissible in
evidence.
Second, the
subpoenas represented pure fishing expeditions in that: (a) in the case of the
Delta Point proof there was no clear indication as to what it said; (b) in the
case of the Euston Tower proofs there was no basis for supposing that Mr Main
had contradicted or would contradict it; and (c) on the contrary Mr Main had
‘readily assented’ to such part of its contents as had already been adverted to
in his cross-examination.
Third, the
subpoenas were not in any event necessary for the fair disposal of the present
arbitrations, having regard in particular to: (a) the issues in the present
arbitration; (b) the evidence already given by Mr Main; (c) the desirability of
retaining the sphere of investigation and documentation in any arbitration
within appropriate bounds; (d) the desirability of preserving the privacy and
confidentiality of the previous arbitrations; and (e) the circumstances in
which Paribas had obtained information about the Delta Point proof and copies
of an extract and the whole of the Euston Tower proof.
Fourth, in
respect of the Delta Point proof any challenge to the subpoenas by Mr Main’s
summons dated July 8 1994 (in parenthesis London & Leeds Estates Ltd’s
summons is dated July 12 1994) was too late, having regard to the fact that Mr
Jones had attended with the documents subpoenaed on May 26 1994 and given them
into the arbitrator’s custody then.
As to the
first submission, Mr Fancourt, for Paribas Ltd, referred to the proofs as
capable of use in three ways: first, as evidence demonstrating what Mr Main had
previously said and presumably believed and was very relevant to credit;
second, as evidence in so far as he accepted their contents in the present
arbitration; and, third, as potentially admissible relative to an issue in the
present arbitration and evidence if Mr Main gives answers inconsistent with
their contents.
As to the
first basis what Mr Main said or believed previously is not in issue in this
arbitration and material going to credit alone is not admissible in
evidence. It may be mentioned to the witness, but his answers are final. As to
the second basis, this is not strictly correct in that, if Mr Main in this
arbitration accepts as accurate statements made by himself in the previous
arbitration, the relevant evidence is his evidence repeating or endorsing the previous
statements, not the previous statements themselves. The third basis was thus a
major plank in Mr Fancourt’s case during the argument before me. It relies on
and refers to sections 4 and 5 of the Criminal Procedure Act 1865 and section
3(1)(a) of the Civil Evidence Act 1968. Mr Fancourt says that a subpoena
may be issued to compel production of a document produced in cross-examination
in civil proceedings with a view to putting its contents to a witness as a
prior inconsistent statement and if he does not ‘distinctly admit’ then putting
the document and proving that he did in fact make the statement. Mr Fancourt
then relies upon section 3(1)(a) of the 1968 Act whereby:
Where in any
civil proceedings —
(a) a
previous inconsistent or contradictory statement made by a person called as a
witness in those proceedings is proved by virtue of sections 3, 4 or 5 of the
Criminal Procedure Act 1865 …
that
statement shall by virtue of this subsection be admissible as evidence of any
fact stated therein of which direct oral evidence by him would be admissible.
Mr Fancourt
referred me to Macmillan Inc v Bishopsgate Investment Trust plc [1993]
1 WLR 1372, cited above where the issue was whether the plaintiffs, who were in
the course of cross-examining a Mr Haas, were entitled by a subpoena duces
tecum addressed to Mr Haas to obtain transcripts of his private examination
by the defendant’s liquidators under section 236 of the Insolvency Act 1986.
The attempt to obtain such transcripts failed on the basis that it was ‘fishing’
since it was pure speculation whether the transcripts contained any answer upon
which the plaintiffs would wish to rely in any way.
Certain points
appear which are in the present case of particular interest. First, after
discussing the authority of R v Cheltenham Justices, ex parte
Secretary of State for Trade [1977] 1 WLR 95, the Court of Appeal, while
rejecting any suggestion that a subpoena duces tecum could be used as
means of obtaining discovery against third parties, adopted as applicable a
broad test whether the production of the document sought by such a subpoena was
shown to be necessary for the fair disposal of the proceedings in which the
subpoena was issued. Second, there is the following discussion in Dillon LJ’s
judgment of the basis on which the transcripts might have been subpoenaed if
the plaintiffs had shown that they were likely to contain helpful answers. He
said at p1375H:
Then there
was some discussion about the possibility of the transcript being admissible
under the Civil Evidence Act 1968. The judge said that there was no reason for
supposing that Mr Haas had made inconsistent statements or that he had made any
statements helpful to the plaintiff which the plaintiff had not thought of
extracting from him in the course of cross-examination. On that it is plain
that, in the judge’s view, it was not shown that the order for the production
of the transcripts was necessary for disposing fairly of the cause or matter.
At pp1377E to
137A–B Dillon LJ also considered the prior decision of R v Clowes [1992]
3 All ER 440 where Phillips J upheld a witness summons by Mr Clowes seeking to
obtain transcripts of interviews with liquidators by persons who were due to be
called and had given witness statements to the prosecution in the criminal proceedings
against Mr Clowes. Phillips J upheld the witness summons on the basis that
there were significant matters in at least two transcripts which had been seen
by Mr Clowes’s advisers, upon which the defence would wish to rely at the trial
in one way or another. Phillips J referred to an argument which had apparently
found favour with Henry J in R v Saunders, an unreported decision
on February 9 1990, to the effect that use under sections 4 and 5 of the
Criminal Procedure Act 1865 to contradict evidence could itself and alone
constitute a legitimate basis for distinguishing R v Cheltenham
Justices. Phillips J did not have to say whether he agreed with this
argument although Dillon LJ’s judgment in the Macmillan case may not be
altogether favourable to it: see p1378B.
In R v Clowes
the documents were not required for contradiction of the witness, but
primarily to put the witness in order to elicit his agreement to the statements
contained. Phillips J found, however, that ‘it was not inconceivable that
circumstances might arise in which parts of the transcripts might themselves be
adduced in evidence’. For example, if one of the witnesses professed no
recollection of a particular incident in the transcript, in which case it could
be proved under section 24 of the Criminal Justice Act 1988 as a statement in a
document created by the liquidator in the course of his profession or
occupation. On either basis Phillips J regarded R v Cheltenham
Justices as sufficiently distinguishable. Both in R v Clowes and
in the Macmillan case itself (see per Dillon LJ at p1375A cited
above) there are therefore indications that it is no absolute objection to a
subpoena that its aim is to obtain a document the contents of which there is reason
to believe will constitute additional matters which, if they can be ascertained
and put to a witness, will add to or put a different complexion on his
evidence, even if the hope is that this will be achieved by his agreeing with
them. A fortiori, if there is a prospect that he will not agree with or
remember the contents, and they may then be adduced in evidence: (a) in a
criminal case in circumstances within section 24 of the Criminal Justice Act
1988; or (b), if they are statements of fact, in a civil case under section
2(1) of the Civil Evidence Act 1968; or (c) at least in a civil case, if they
may be put to a witness under sections 4 and 5 of the Criminal Procedure Act,
and proved and then adduced in evidence under section 3(1)(a) of the
Civil Evidence Act 1968.
R v Cheltenham Justices is also distinguished in another case
to which Mr Fancourt referred me, decided in 1991, but not reported. That is Sphere
Drake Insurance plc v Denby to which I have already referred. In
that case Judge Kershaw explained R v Cheltenham Justices as
limited in two ways: (i) to attempts ‘to obtain a document for use in
cross-examination where the cross-examination is to make evident only that a
witness has made a previous inconsistent statement and is cross-examination which
goes only to credit and not to an issue between the parties’; in this
connection I note that he does not appear to have been referred to Henry J’s
decision in R v Saunders or indeed to Phillips J’s decision in R
v Clowes; and (ii) to witness statements as distinct from High Court
procedures for the production of documents. The criteria for issue of a witness
statement are defined by section 77 of the Magistrates Court Act 1952 in the
following way:
Where a
justice of the peace … is satisfied that any person … is likely to be able to …
produce any document or thing likely to be material evidence …
This provision
is in language not found in any of the Rules of the Supreme Court governing
production of documents and has been regarded as defining the jurisdiction of
magistrates: see R v Lewes Justices, ex parte Secretary of
State for the Home Department [1972] 1 QB 232 referred to in R v Cheltenham
Justices.
The broad test
adopted in relation to subpoenas by the Court of Appeal in the Macmillan case
indicates that there is force in the distinction drawn by Judge Kershaw,
although no doubt R v Cheltenham Justices identifies certain
policy considerations which are also relevant in the context of production of
documents under the rules.
Reverting to
the first basis on which Judge Kershaw distinguished R v Cheltenham
Justices, he considered that a reasonable possibility that a prior
inconsistent statement would become evidence under section 3(1)(a) of
the Civil Evidence Act 1968 could justify issue of a subpoena for its
production. Further, he considered that there would be no reason to await the
trial or the eliciting by cross-examination of an apparently inconsistent
statement before such a subpoena could issue.
I agree with
both his conclusions. On the facts of Sphere Drake the subpoena was once
again set aside as fishing because there was no basis for expecting to find any
discrepancy whether major or minor.
Mr Barnes QC,
who represented London & Leeds Estates Ltd and whose submissions were
adopted generally by Mr Price in addition to his own, submitted that there
could on the facts of this case be no question of Mr Main’s previous proofs
being deployed under sections 4 and 5 of the Criminal Procedure Act, let alone
becoming admissible as evidence under section 3(1)(a) of the Civil
Evidence Act 1968. The only prior inconsistent statements to which these
sections referred were, according to him, statements put in use with a view to
showing that a witness was deliberately lying in his current evidence. Indeed,
all cross-examination as to credit or creditability was, according to Mr
Barnes, confined to challenges to truthfulness. While counsel could always
suggest to a witness that he had forgotten some matter or was plain wrong, it
was only if he were challenging the witness’ current honesty that counsel could
put and prove the contents of a prior inconsistent statement. Since there was
no express challenge to Mr Main’s truthfulness it would not therefore,
according to Mr Barnes, be possible to use any contradictory statements in his
prior proofs during his cross-examination.
These were
somewhat remarkable propositions which, if correct, would alter the nature and
practice of much cross-examination and deprive courts of what is frequently
very useful material to assist in identifying the real factual position. Where
a witness gives evidence, what is of direct concern is whether his evidence is
accurate, and not whether the witness is lying or has genuinely come to believe
some version other than what is accurate, whether by some process of erroneous
reconstruction or wishful thinking or whatever. The usefulness of a prior
inconsistent statement does not depend on any investigation into or
consideration of his current truthfulness. The purpose of putting to a witness
any prior inconsistent statement, assuming of course that it does not
immediately lead him to change his evidence so as to agree with the
cross-examiner, is to have him admit that he made it and, if he does not admit
this, to prove this under sections 4 and 5 of the Criminal Procedure Act.
In this event,
the statement also becomes admissible evidence under section 3(1)(a) of
the Civil Evidence Act 1968. Mr Price himself sought to introduce another
restriction on the operation of the Criminal Procedure Act and Civil Evidence
Act. He referred to the references in sections 4 and 5 of the former Act to
cross-examination as to a former statement made by a witness ‘relative to the
subject matter of the indictment or proceeding’. According to Mr Price the
subject-matter of the present arbitration proceedings is simply the proper rent
valuation of the premises at 33 Wigmore Street, as at August 8 1991.
This is indeed the ultimate issue but there are numerous very important
subsidiary issues being litigated, as the extracts from Mr Main’s proofs, which
I have quoted demonstrate, in the course of determining and with a view to assisting
determine this ultimate issue. One of these subsidiary issues — essential
background to the determination of the open market rental value of 33 Wigmore
Street, itself at August 8 1991 — concerns the state of the West End property
market at the relevant time.
The passages
which Mr Price emphasised in sections 4 and 5 of the Criminal Procedure Act
embrace all such issues arising in the arbitration, not merely the ultimate
issue. Mr Price’s submissions to the contrary were again contrary to practice
and policy.
I turn,
therefore, to the defendant’s other submissions. It is convenient at this point
to consider the Euston Tower proof first. The second submission raised was that
the subpoena represented in respect of this proof a mere fishing expedition. It
was said that it contained nothing which Mr Main had contradicted or was likely
to contradict. On the contrary he had readily assented to such part as had
already been adverted to in his cross-examination. Mr Barnes pointed out that
the state of the properly market is not capable of being measured with exact or
mathematical precision. If necessary it can be measured only by generalities or
adjectives. There would always be differences of language and nuance. Two
witnesses would never say precisely the same thing.
However, here
we are concerned with one and the same witness. Comparison of the market
sections in Mr Main’s present proof and in his Euston Tower proof indicate that
they start off virtually identically. The present has been copied from the
former or there exists a master draft. His Euston Tower proof then moves to a
passage on world events covering the period October 1990 to October 1991 and
containing this colourful and forceful paragraph which I have already set out:
This unique
cocktail of events led to great uncertainty and a general lack of business
confidence as a true recession became a harsh reality. In the property market
there was choice, the tenant was at last king and rent and capital values were
falling.
His present
proof, on the other hand, speaks of his experiencing ‘several periods of
economic difficulties which have affected the property market’ and then
identifies the four phases which he says are characteristic of such periods.
Starting by saying that the market on August 8 1991 (five months further down a
falling market than the Euston Tower review date) ‘was moving’ into stage (ii),
Mr Main amended this to ‘had moved’. Even after this amendment I see force in
the submission that the two proofs take noticeably different lines, and give
significantly different impressions. I can see good reason why counsel for
Paribas Ltd should wish and be entitled to put the Euston Tower proof to Mr
Main in relation to the state of the property market in August 1991 and seek to
have him either agree without qualification with his previous views or, if
necessary, put the document and prove that Mr Main expressed them.
Such
cross-examination as there has already been does not dispel this conclusion. It
is said that Mr Main ‘readily assented’ to what he previously said. If he did
then Phillips J’s decision in R v Clowes suggests and indeed the
Court of Appeal’s dicta, which I have set out in the Macmillan case,
suggest that that may not be inconsistent with the purpose of a subpoena. If
there is good reason to believe that a witness has in a previous statement said
something additional to or different from what he now puts in his proof there
is, as I have already concluded, much to be said for the document being made
available to enable its contents to be used to obtain the witness’ full account
whether or not it is necessary actually to put and prove the document.
In the present
case, however, I also think that ‘ready assent’ is not an entirely accurate
description of what happened. The likelihood in the case of an inconsistent
statement recorded in a document is not that the witness will, or will continue
to, deny making the statement outright, but is that he will seek to modify or
qualify rather than simply admit. Mr Main’s reaction to the suggestion that by
March 1991 tenants regarded themselves as being king in the market-place was
‘Did I say that?’ and after reference to the Euston Tower arbitration: ‘I shall
have to look it up, but if you say I gave that evidence I gave it’. (I note in
parenthesis in this connection Lord Esher’s words in North Australian
Territory Co v Goldsborough, Mort & Co [1893] 2 Ch 381, at
p385.)
In the end,
after much argument, the question was repeated:
In purely
general terms is it or is it not your view that in March, 1991, a few months
earlier, when it came to negotiations of substantial lettings, at any rate, the
tenant was king of the market place?
Mr Main
answered,
If you were
negotiating 150,000 sq ft in Euston Tower the answer is yes.
So Mr Main is
not in fact accenting his previous proof in terms. He is dividing the market.
He is qualifying the language of the Euston Tower proof to apply only to
buildings of 150,000 sq ft or so. This may of course prove to represent a
correct distinction. But the important point which can at present be made, on
the material before me, is that the passages about the state of the West End
market in both proofs are entirely general. The market is not, for example,
split into different commercial markets dependent on whether the premises are
large or very large. Paribas Ltd can, in my view, say ‘arguably and on
reasonable grounds’ that there appear to be potential inconsistencies between
the approach in the previous and present proofs: see Sunderland Steamship
P&I Association v Gatoil International Inc ‘The Lorenzo Halcoussi’ [1988]
1 Lloyd’s Rep 180 per Steyn LJ at p184, cited in the Sphere Drake case.
Turning to the
third submission, is the subpoena in respect of the Euston Tower proof
necessary for the fair conduct of the present arbitration? I have referred to
the central importance of property market conditions in 1991 in the West End to
the present arbitration. Mr Main is obviously a weighty witness although not
the only witness on the subject. I, of course, bear in mind the desirability of
retaining the present arbitration within appropriate bounds. No doubt the
present arbitrator will seek to ensure this also. But the intention is
cross-examination on a previous proof so far as it summarises general market
conditions in the West End. This will not, in my judgment, unduly over-inflate
an already expanded arbitration. It will not call for investigation of all the
other evidence given in the previous arbitration. Further, of course he has
already gone into one aspect of the previous proof although it has not been
possible to put it to him. If Mr Main changed or qualified his description of
general West End market conditions when he came to give his oral evidence in
the Euston Tower arbitration he can say this and I have little doubt that he can
probably without much difficulty demonstrate it by obtaining a transcript. He
can also develop the point that the Euston Tower premises were so much larger
as to constitute in effect part of a different market, if that is his
explanation. It is worth bearing in mind that, if instead of acting as expert
in the previous arbitration Mr Main had written articles or given previous
evidence about the West End property market in court proceedings, there could
be no obstacle to cross-examining him on his previous statements.
As to privacy
and confidentiality, the fact that Mr Main’s previous proof is required on a
single issue of general market conditions, in my view, means that these factors
carry relatively little weight as arguments against upholding the present
subpoena. The circumstances in which first some pages of the proof were
obtained from one party and then a copy of the whole proof from the other party
without in either case approaching Mr Main can justly be viewed as
unsatisfactory, but both parties to the previous arbitration have indicated a
readiness to allow Paribas Ltd to get to know of the relevant contents, even
though Mr Main has not done so himself and the contents of the whole proof have
in fact been deployed in evidence before me. Mr Price said that Mr Main was
contemplating separate proceedings based on breach of confidence and/or
copyright, but these are not before me and would also appear to strike new
ground in terms of injunctive relief since this case is not concerned with any
question of privilege. The usual principle is that unprivileged material is
admissible even if it can be seen to have been procured in circumstances
involving breach of confidence.
The evidence
of the contents of the proof is in fact before me and I cannot ignore it. I can
take into account the circumstances in which, and even on their own view
limited, the basis on which Paribas Ltd obtained the proof in determining
whether as a matter of discretion the subpoena should be upheld as necessary
for disposal of the matter, but in deciding whether Mr Main’s objection to the
production and use of his proof should prevail, there is, in my view, another
powerful principle at play. To introduce it I will refer to a cogent passage in
Bernstein & Wood’s Handbook of Arbitration Practice, 2nd ed
1993 at para 21.2.1:
Duty to
tell the truth
There are
surprising differences of opinion between professional men as to the principles
they should observe when preparing, and ultimately giving, evidence before a
court or an arbitrator. It has been said by a professional man of great
standing, that an expert witness is under no duty to bring out facts which do
not advance the case that his client is putting forward; that that is the duty
of the expert on the other side. This view has been repeated recently.
Then there is
a reference to an article in arbitration of August 1990:
Many rent
review valuers take the view that, having regard to the margin of error
inherent in any valuation, if the best estimate of rental value that anyone
could make for a particular building is £10,000–£11,000 per annum it is wholly
legitimate for the valuer to value the building at £10,000 per annum if
instructed by the tenant and a £11,000 per annum if instructed by the landlord
putting forward different arguments and sometimes different evidence in each
case.
This view is
misconceived. A witness who states in evidence (whether or not on oath is
irrelevant) that his opinion of value is 100, when his opinion in truth is that
the value is a figure between 100 and 110 as to which he cannot be more
certain, is not telling the truth; he is shading the truth, presumably because
he thinks it will advance his client’s interests. It cannot be right that two
valuers who in truth agree (as they so often do) that the right answer is a
figure between 100 and 120 should give evidence, on different sides, one saying
that his opinion is 100 and the other that his is 120. Of course while a case
is being prepared, the expert owes a duty to his client to assist by every
proper means in preparation of the case and, so requested, in negotiation. But
once the witness begins evidence (and this includes submitting a proof or
report before the hearing, as well as the oral evidence given during the
hearing) his duty to his client is no more than that he shall use a reasonable
level of professional skill and care. Subject to that duty, he owes a duty to
himself to tell the truth, the whole truth and nothing but the truth. He also
owes a duty to the arbitrator to assist him to arrive at a just decision. No
greater tribute can be paid to a professional man than to have it said of him
that his opinion remains the same whoever is paying for it.
This passage
focuses on the issue of truthfulness which is, of course, fundamental. But
similar observations, in my judgment, apply with respect to the need to resist
any subconscious tendency for an expert to become a member of a team and as a
result to proffer views unduly favourable to the position of the party
instructing him. As I have said, it is evident that Mr Main’s two proofs start
off down a common path and then diverge at least somewhat. It does not seem to
me that Mr Main has legitimate ground to object to cross-examination about his
previous statements on the general subject of West End property market
conditions in 1991. If a witness were proved to have expressed himself in a
materially different sense when acting for different sides, that would be a
factor which should be brought out in the interests of individual litigants
involved and in the public interest.
Thinking as I
do, that there is at least a legitimate basis for admiring the Euston Tower
proof in the present arbitration, I have come to the conclusion that the
arguments in favour of upholding the subpoena outweigh such objections as there
are on grounds of privacy and confidentiality.
I turn
therefore to the Delta Point proof. The circumstances here are quite different.
No one save Mr Jones under subpoena has released it to anyone. There has been
no discussion of it during the arbitration. The only information about it is
cryptic in the extreme and comes in plain breach of confidence from Mr Jones as
arbitrator in the Delta Point arbitration. His statement that some of the views
expressed by Mr Main are ‘relevant’ to the 33 Wigmore Street arbitration does
no more than reflect a test which would be applicable on discovery inter
partes and says nothing which would enable me to judge whether any use can
be made of the proof in the present arbitration. His statement to Miss di
Iorio, that Mr Main’s present proof is ‘not what Mr Main said in Delta Point’,
gives no particulars as to the respects in which the two might differ or, if it
be the case, might be positively inconsistent.
Delta Point
appears, unlike Euston Tower, to be outside the West End property market. If
one surmises that Mr Main’s Delta Point proof may have said the same as his
Euston Tower proof, that, to my mind, simply confirms that it is not necessary
to go into the Delta Point arbitration at all. One instance of inconsistency
would appear as good as two in the present context. All these factors lead me
to the conclusion that the Delta Point subpoena was, first, no more than a
fishing expedition and, second, in any event not an exercise which the court
should in its discretion regard as necessary for fairly disposing of the
present arbitration.
That leaves
me, however, to consider the final point, whether the summons to set aside the
subpoena addressed to Mr Jones should be regarded as too late in the light of
Mr Jones’ production of the proof to
provided by Marcel v Commissioner of Police of the Metropolis [1992]
2 Ch 225, at pp231C–D and 239B–C per Sir Nicolas Browne-Wilkinson V-C.
There, documents ‘were left in the custody of the court under an informal
arrangement’ and not looked at or read. Thereafter proceedings were begun for
an injunction to restrain their use, later amended to include a claim to set
aside the subpoena: see p231F–G. The Vice-Chancellor rejected the submission
that it was too late to set aside the subpoena, saying at p239B:
Mr Serota
takes two preliminary points. First, he says it is too late to set aside the
subpoena; the police officer has lodged the papers with the court and therefore
the subpoena is spent. I reject this submission. All that has happened is a
convenient arrangement whereby, by consent, the documents have been lodged with
the court. The police officer has not gone into the witness box to prove them;
they are not in evidence in the main actions and, save by the consent of the
company, will not become so unless and until the police officer goes into the
witness box.
By parity of
reasoning, nothing having happened in this case save the formal consignment of
the documents to the custody of the arbitrator under a degree of protest from
the landlord’s side, it is not too late to apply to set aside the subpoena. In
the circumstances I consider that Mr Main has sufficient standing to intervene
on valid grounds to make this application which, in my judgment, succeeds.
I therefore
dismiss the summons dated July 12 issued by London & Leeds Estates Ltd
relating to both proofs as well as Mr Main’s summons dated May 18 1994 so far
as it relates to the Euston Tower proof. I grant Mr Main’s application by
summons dated May 18 1994 to set aside the subpoena addressed to Mr Jones in
respect of the Delta Point proof.
