Miley v Friends Life: Whether judge in a case on avoidance should recuse himself

One of the issues in this case was whether the defendant insurer was entitled to avoid the policy for non-disclosure after the policy had been placed. Clause 5 of the policy provided that "if in connection with the happening or purported happening of any event insured by this Policy, the Member makes an untrue statement…or omits to disclose a Material Fact, the cover provided by the Policy…will immediately become void.." It was therefore argued by the defendant that it did not matter if the claimant insured had been innocent of all fault, the policy could still be avoided (ie fraud or recklessness was not required).

The judge had asked if there were any relevant statutory or regulatory provisions which might relate to the application, interpretation or effect of Clause 5 and when the claimant did not refer to that issue in his further written submissions, the judge asked for an opportunity to hear oral submissions on certain matters. In response to the defendant's question, he advised that he wished to hear submissions on whether an innocent or careless omission would have the result of voiding the policy.

Two months later, the defendant invited the judge to recuse himself, in part on the basis that he attempted to pursue an analysis of the law which would limit the ambit or effect of Clause 5 to the benefit of the claimant alone, even though the claimant had not pursued the point. The judge rejected that argument: "In the absence, at least, of any express concession on the part of the party in whose interests a legal point has not been made or developed, the judge is not required to turn a blind eye to the potential points of law which may not have been fully or adequately considered by the parties". He rejected any appearance of bias and refused to recuse himself.

As a preliminary issue, the judge also noted that the application had not complied with the formalities of CPR r23 as no application notice had been filed. Although the court can dispense with an application notice, that is "an act of discretion and not one of generic entitlement". He did however agree to dispense with the need to file an application notice given the further delay which that would have caused.

COMMENT: As noted in the judgment, the state of mind required of the assured under common law for a breach of the post-contractual duty of utmost good faith is unresolved by prior caselaw (although some textbooks refer to the requirement for fraud to be demonstrated). Accordingly, if this case goes to trial, this issue may be resolved (although it may instead turn upon an interpretation of the particular clause in the policy). (Although the Insurance Act 2015 retained the duty of utmost good faith (including post-contract), it is no longer possible to avoid the contract on the basis of the breach of this duty).

Glaxo Wellcome v Sandoz: Judge refuses permission for expert evidence

CPR r35.1 imposes a duty on the court to restrict expert evidence to that which is reasonably required to resolve the proceedings. In British Airways v Spencer (see Weekly Update 31/15) Warren J held that permission should be granted for expert evidence if it is either necessary or reasonably required, but not if it will just be of assistance to the court.

In this case, Chief Master Marsh agreed that this approach was useful, but added that there was an anterior issue: is CPR r35 engaged at all? In this case, he found that one area of expert evidence proposed by the defendants was not really expert evidence because "it is not a matter of opinion and is not didactic evidence that neither need be contentious nor require explanation from an expert". In any event, he doubted if expert evidence was reasonably required: the parties should instead engage with each other to establish "whether there are genuine fault lines between them".

Chief Master Marsh also highlighted the problem of the court not being given a sufficient description of the proposed evidence "Had the application been supported with evidence about the identity of the likely individuals who will be introduced as experts, their own experience and the sort of evidence that they might give it would have been better founded because it would have been possible to identify evidence that might properly be characterised as expert evidence".

COMMENT: Parties will often wish to seek permission without naming a specific expert, because they will not then need permission to instruct another expert if they decide that they no longer wish to rely on the evidence of the first expert. However, this case highlights the danger that a judge might conclude that it is difficult to give permission in advance without knowing the identity of the proposed expert.

Blue v Ashley: Whether non-party allowed access to witness statements referred to at a pre-trial hearing

The applicant (a non-party to the proceedings) sought access to witness statements which had been referred to at a pre-trial hearing.

CPR r5.4C allows non-parties to obtain copies of statements of case from the court record, but that does not include documents filed with the statement of case (such as witness statements). However, permission can be sought from the court for access to any documents filed by a party. Leggatt J rejected an argument that he had no power to allow access to the witness statements in this case because they were not on the court file. A document is "filed" at court when it is delivered to the court office and it doesn't matter if a copy of the document is no longer on the court file (as the court could order the document to filed again or to provide a copy directly to the non-party). The judge also rejected an argument that it is implicit in CPR r32.13 that a non-party cannot be allowed to inspect a witness statement until it stands as evidence in chief during the course of the trial.

Accordingly, the court did have power to give permission for a non-party to have access to the witness statements. However, the judge cautioned that "There are, in my view, good reasons why the court should not generally make witness statements prepared for use at a trial publicly available before the witnesses give evidence".

The judge went on to find that "once documents have been placed before a judge and referred to at a public hearing, access to the documents should be permitted other things being equal. But it does not remove the need for the court to consider the particular circumstances, including the nature of the documents in question, their role and relevance in the proceedings and, importantly, the purpose for which access to the documents is sought". If the purpose of the non-party here had been to facilitate a better understanding of the arguments made at the hearing, then, in the absence of a sufficient countervailing reason, the open justice principle would indicate that access should be allowed, However, that was not the purpose here and the application was (in the main) refused.

Rollitt v Ballard: Claimant refused extension of time to appeal an arbitral award where payment of arbitrator's fees was delayed

The claimant applied for an extension of time to appeal against an arbitral award. The principles applicable to the court's discretion to extend time were summarised in Terna Bahrain v Al Shamsi (see Weekly Update 43/12) and included the reasonableness of the claimant's delay (which in this case was for a period of 88 days beyond the 28 deadline provided for in the Arbitration Act 1996).

The initial period of delay arose from the parties' dispute as to who should pay the arbitrator's fees. The arbitrator's terms of engagement provided that the parties were jointly and severally liable (ie the claimant was liable for the fees if the defendant declined to pay). The defendant had refused to sign the terms of engagement and refused to pay half the arbitrator's fees following the award (because he believed that the arbitrator had had no jurisdiction to determine the dispute). The arbitrator had been entitled to refuse to release the award pending payment of his fees. The judge referred to earlier caselaw and confirmed that the onus had been on the claimant to pay the fees in order to preserve its right to challenge the award.

Further delay had occurred when the claimant eventually paid the arbitrator's fees by cheque sent by post, rather than using a quicker method of payment: "It was a matter for the claimant as to the method of payment used but the time taken for the funds to clear does not give him an excuse for the further delay". Thus, although there had not been a deliberate decision to delay making the application, the claimant had no reasonable explanation for the delay. The fact that the defendant had refused to pay any of the fees did not make any difference.

Simpkin v The Berkeley Group: Privilege of documents stored on employer's computers/waiver issues

It is a pre-condition to a claim for privilege that the documents in question are confidential. In Shepherd v Fox Williams (see Weekly Update15/14) confidentiality was not lost in respect of documents sent to someone's personal email address which were opened and then stored on her employer's server, as the sender had not consented to a waiver of privilege.

However, the position was held to be different in this case, where an employee (the claimant) had created and saved a word document on his employer's computer (before emailing it to his personal email address). The claimant had signed a copy of his employer's IT policy which made it clear that documents sent and received on its IT system belonged to the employer. It was also held that the document had been created in the course of the claimant's employment. It was impossible that the claimant had any reasonable expectation of privacy as regards the preparation of the documents, and he should have been aware that documents saved to a folder on one drive of the employer's central servers were stored centrally, and the documents were also not password protected. The judge summarised that the document "was never confidential as against [the employer] or, if it was, it lost its confidentiality when it was processed on the defendant's IT system".

There was also an issue in the case about whether the claimant had waived privilege in certain emails by "deploying" material in court. Garnham J held that one email was "deployed" in a witness statement in which the claimant described re-formatting a document: "He is describing the contents of the email in order to make good his case that he did not work on it at the defendant's premises. In my judgment he is "deploying" the contents of the email and in those circumstances he has waived privilege in that email". However, the content of another was not deployed where the document was referred to simply as a part of the narrative.