Civil Evidence White Paper 2014

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CIVIL EVIDENCE WHITE PAPER 2014 FROM SWEET & MAXWELL With a number of important developments taking place throughout the year in the area of evidence and e-disclosure, leading authors in civil practice consider cutting-edge topics.

Hodge Malek QC and Saima Hanif of ThirtyNine Essex Street consider Hoyle v Rogers on pre-existing official reports and whether the CPR Pt 35 regime applies, and Peter Hibbert reviews CBS Butler Ltd. v Brown in the context of the principles set out by Lord Justice Hoffman in 1989 in Lock v Beswick.

• Pre-existing official reports – does the CPR Pt 35 regime for expert reports apply? (Malek & Hanif) • E-disclosure – Accessing the opponent’s computer database (Hibbert)

CASES OF NOTE In terms of recent decisions, the following are of note: • Mid-East Sales Ltd v Engineering & Trading Co. PVT Ltd (2014) – the High Court found that D had waived LPP by citing legal advice in its witness evidence • Tchenguiz v Director of the Serious Fraud Office [2014] EWCA Civ 136 (CA (Civ Div) – the scope of litigation privilege • Luckwell v Limata [2014] EWHC 536 (Fam) – the Court gave guidance on the circumstances in which, in civil proceedings, witnesses can be excluded from parts of the trial • Brownlie v Four Seasons Holdings Inc. [2014] EWHC 273 (QB) – offers a reminder of the Court’s power to prevent the use of defective witness statements

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PRE-EXISTING OFFICIAL REPORTS – DOES THE CPR PT 35 REGIME FOR EXPERT REPORTS APPLY? Hodge Malek QC and Saima Hanif, Thirty Nine Essex Street In the recent case of Hoyle v Rogers [2014] EWCA Civ 257, the Court of Appeal considered the vexed issue of whether a pre-existing official report prepared by an independent third party, which was subsequently relied upon by a claimant in litigation, was subject to the framework of CPR Part 35.

In Hoyle, Mr Rogers was killed in an airplane accident. The family of Mr Rogers (“the Claimants”) brought a negligence claim against the pilot. As part of the action, the Claimants served a hearsay notice of their intention to rely on a report (“the Report”) prepared by the Air Accident Investigation Branch (“AAIB”) as hearsay evidence at trial. The Report was a public document. The Defendant objected to this, arguing that it was inadmissible opinion evidence, and that the Claimants did not have permission pursuant to Part 35 to rely on it.

The judge at first instance concluded that Part 35 did not apply, and the Report was therefore admissible in evidence.

Before the Court of Appeal, the Defendant argued that the Court had been wrong to do so, on the basis that: 1. the admission of the Report was contrary to the rule in Hollington v Hewthorn [1943] KB 857 (namely that findings of tribunals and inquiries are not generally admissible in subsequent proceedings); 2. to the extent that the Report contained expressions of expert opinion, it did not comply with the mandatory provisions of Part 35; 3. even if the Report was admissible, it should be excluded as a matter of discretion, under CPR 32.

Rejecting the Defendant’s arguments, the Court of Appeal concluded: 1. the rule in Hollington was distinguishable on the basis that it applied only to judicial findings, which had to be based solely on the evidence adduced by the parties, rather than those of an expert investigator, which were based on the expert’s own technical knowledge and experience. The Report fell into the latter category and therefore did not have to be excluded under that rule; 2. relying upon a passage in Phipson, the Court concluded that Part 35 did not apply to the Report. Part 35 was not a comprehensive and exclusive code regulating the admission of expert evidence; rather Part 35 regulated the use of a particular category of expert evidence, namely persons who had been instructed to give or prepare expert evidence for the purpose of proceedings (emphasis added). It did not control the admission of other types of evidence, including other types of expert evidence. In so concluding, the Court of Appeal endorsed the decision in Interflora Inc v Marks and Spencer PLC [2013] EWHC 936 (Ch) (where the Court also relied upon paragraph 33-25 of Phipson) where Arnold J held that academic journal articles relating to internet literacy were admissible in a trade mark infringement claim and did not fall within CPR 35. Accordingly the Claimants did not need the permission of the Court to adduce the Report.

3. The Court also found that not only was the Report admissible evidence, but it had potential value on account of (i) the independence of the AAIB; (ii) the fact that it was the product of an impartial investigation into the causes of the accident by experts who were not concerned to attribute blame; and (iii) the fact that it had a much greater ability than anyone else to obtain and analyse data relating to an accident which otherwise was likely not to be available or only with considerable difficulty and cost. The circumstances in which it would be appropriate to exclude evidence that was admissible and likely to be helpful therefore had to be limited. The overriding objective of dealing with cases justly and at proportionate cost favoured the inclusion of the Report, as many litigants would in practice find it impossible or very difficult to access such information. The Court would not therefore exercise its discretion to exclude the Report.

4. The Court resolutely rejected the argument that admitting the Report would have an inhibitory effect on the conduct of investigators in future.

This guidance from the appellate court is to be welcomed. It clarifies the fact that pre-existing official reports, produced by persons who have not been instructed to prepare the report for the purpose of proceedings, do not fall within CPR 35. They are admissible at common law and are not excluded by the hearsay rule because of the Civil Evidence Act 1995. The position is different however if, as in Humber Oil Terminals Trustee Ltd v Associated British Ports [2012] EWHC 1336 (Ch), the party relying on the official report actually does seek to rely on it as an expert report, in which case Part 35 must be complied with.

Finally, the decision also accords with common sense – as the Court of Appeal noted, it would be difficult to justify the exclusion of the Report given that it was freely available to the public, and that it would be of assistance to the Court.

Hence, both as a matter of principle and pragmatism, the ability to admit and rely on pre-existing official reports in litigation, without having to navigate the Part 35 regime is something to be welcomed.

E-DISCLOSURE – ACCESSING THE OPPONENT’S COMPUTER DATABASE Peter Hibbert The scenario is a common one. An employee gives notice to leave his job to join a competitor or to set up a business in competition with his former employer. There is a temptation for employers to assume that any competition by former employees gives rise to a presumption of dishonesty: that the employee must have copied client lists and knowhow databases before the employee’s departure.

Even in the days of the old Anton Piller orders, the courts were not slow to ensure that a proportionate approach should be taken. As Hoffmann J said in Lock v Beswick [1989] 1 WLR 1268 at p.1281: “People whose commercial morality allows them to take a list of the customers with whom they were in contact while employed will not necessarily disobey an order of the court requiring them to deliver it up. Not everyone who is misusing confidential information will destroy documents in the face of a court order requiring him to preserve them”.

The problem with 21st century technology is, of course, that a dishonest employee might not just have taken a list of customers. Many thousands of documents could equally have been taken remotely from the employer’s server and to have become inter-mixed with personal or confidential data on the former employee’s laptop or desktop computer hard-drive at home.

Even where the employer can persuade a judge to grant a search order, as distinct from a preservation order, that can be just the beginning of the problems for the employer, as was demonstrated in CBS Butler Ltd. v Brown & others [2013] EWHC 3944 (QB). In CBS Butler, a search order was obtained against two former employees, who had set up a rival recruitment business, and who were ordered to allow access to “disclosable items” in their possession or control, which were defined as including any computer, any mobile device (including mobile phone or tablet), any personal email account, any external media (including hard drives) and any cloud storage.

The order also required the defendants to allow the claimant’s computer forensic expert to take images of these storage devices, but was subject to the usual undertaking that the claimant would not search or use these images without permission of the court or agreement from the defendants.

The order was executed and, in later court proceedings, after the defence had been filed, the claimants made an application to the court to allow their computer expert to interrogate the images using keyword searching, as mentioned in Practice Direction 31B para.9(3), and by blacklist (not mentioned in the Practice Direction) – the latter would be a list of search words to help identify documents that were irrelevant or privileged. The effect of the order would have been that any document that was not filtered out by the blacklist had to be handed over to the claimant without the defendants having any opportunity to intervene to check whether it contained privileged or other confidential material.

Tugendhat J refused to make that order as it was contrary to normal principles of justice, and could only be made when there was a paramount need to prevent a denial of justice to the claimant. This could arise where, for example, a defendant had failed to comply with his disclosure obligations, having been given an opportunity to do so; or before then if there were substantial reasons for believing that a defendant was intending to conceal or destroy documents in breach of his obligations under the CPR. Neither of these situations existed in this case.

So, it is clear that the principles set out by Hoffmann J in Lock v Beswick still apply in the 21st century context of accessing the images of the opponent’s computer database. Even where there is evidence of misuse of confidential data (or breaches of restrictive covenants) by a former employee, that does not automatically give rise to a presumption that the defendant will destroy the data. There would have to be substantial grounds for believing that the defendant will conceal or destroy the data in breach of his disclosure obligations under the CPR.

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Civil Evidence for Practitioners

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