Two recent cases illustrate that whilst you should not set a trap for your opponent, you are not under a duty to either point out their mistakes or “help them out” if they seek your assistance and a third case illustrates how expert reports can end up in the hands of a third party even if the case settles or discontinues before trial.

Keeping Shtum - Case One

Carnegie v Drury (2007) EWCA Civ 497, is a case about service of proceedings. Mr Drury issued proceedings for libel against Mr Carnegie, a journalist and against the BBC, his employers.

On the last day for service Mr Drury’s solicitors realised that they did not have an address to enable them to serve proceedings on Mr Carnegie. They therefore asked the BBC’s Litigation Department if they would agree to either accept service on behalf of Mr Carnegie or confirm his home address so they could serve the proceedings.

The BBC replied that they did not have instructions to either accept service on Mr Carnegie’s behalf or to disclose his residential address.

The Claimant’s solicitors then faxed the BBC enclosing the proceedings saying that in the absence of co-operation they were serving the Claim Form at the last known place of work. Unsurprisingly the BBC returned the papers saying again that it did not have instructions to accept service.

The Claimant then made both a retrospective application to extend the time for service and an application authorising service at Mr Carnegie’s last known place of work.

On appeal the Court rejected the Claimant’s application. To grant an extension retrospectively under CPR 7.6(3) (b), the Claimant had to show that he had taken all reasonable steps to serve the Claim Form. He had not met this threshold as he had in fact done nothing at all until the last available day.

The fact that the BBC were either unwilling or unable to help was neither here nor there. Lady Justice Smith concluded that “A potential Defendant is not obliged to help a Claimant to serve documents. He should not make life difficult but he need not give any positive assistance and he is certainly not under any obligation to forego his legal rights”.

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Keeping Shtum - Case Two

Thames Trains Ltd and another v Michael Adams (2006) EWHC 3291 concerns the settlement of a PI claim brought by one of the passengers involved in the Ladbrook Grove rail crash.

Thames Trains had previously paid US $9,300,000 into court. The day before the commencement of the trial, Mr Adams’ solicitor telephoned Thames Trains’ solicitor seeking settlement at US $10,000,000. She was told that there were no further monies available and that the trial would therefore proceed.

Following that telephone call, Mr Adams’ solicitor sent a fax to Thames Trains Solicitors saying that her client would accept the $9,300,000 subject to 3 conditions. Due to IT difficulties, the fax did not come to the fee earner’s attention until several hours later.

In the meantime, the Defendant’s solicitor took instructions from his insurance client and was told to offer a further US $500,000 to settle the claim. He then telephoned the Mr Adam’s solicitor and informed her of those instructions. Unsurprisingly she immediately told him that she had instructions to accept this revised offer.

After the call finished, Mr Adams’ Solicitor sent a further fax confirming the terms of the agreement that had been reached and stating that the earlier fax was superseded as it had been sent “in error”!

Thames Trains later sought to set aside the agreed consent order on the grounds of estoppel, mistake and unconscionable conduct by Mr Adams’ solicitor.

The court found that Mr Adams’ solicitor had not been under a duty to inform Thames Trains of her earlier fax. She was perfectly entitled to stay silent, act in her client’s best interests and accept the revised offer. However, the Judge commented that if she had been asked a specific question, she “may” have been required to answer it.

The Judge was at pains to stress that cases like this turn on their specific facts. Reading the case report you are left with the impression that both parties were sailing very close to the wind. The Judge was clearly not impressed that the Solicitor for Thames Trains had robustly stated that no more money would be available, when he did not know this and had not taken instructions. Equally the Judge was unimpressed with Mr Adams’ solicitor stating that her earlier fax had been sent “in error” when it clearly had not been.

There is an obvious moral. General speaking you should ensure that your opponent has rejected any previous offers before you make further proposals.

It is important to remember that there is still a line that should not be crossed. There are many reported cases which confirm that you should not actively encourage your opponents mistaken beliefs (see for example The Henrik Sif 1982 Lloyds Reports 456 and The Stolt Loyalty 1993 2 Lloyds Law Reports 281). However, it seems that whilst you should not lead you opponents “up the garden path”, if they decide to take a horticultural detour without prompting you do not have to send them a map.

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Can we have a look please? - Case Three

It is important to appreciate that if experts reports are disclosed during the course of litigation, these could end up in the hands of a Third Party, even if your case settles or discontinues before trial and the reports are never read by the trial judge.

Since the introduction of CPR 5.4C, non parties have been entitled to see copies of the pleadings without needing the court’s permission. However this section also provides that “a non-party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party”

The circumstances in which the court would permit disclosure to a third party were recently considered for the first time in Sayers and others v Smithkline Beecham plc and others (2007) EWHC 1346.

Whilst the MMR claims in the United Kingdom have been abandoned, litigation in the United States continues unabated. In one of the US test cases, analysis of biopsy specimens apparently showed the presence of the live measles virus. The specimens themselves were no longer available and the Defendant (the US Secretary of State for Health) could not have them independently analysed. However, similar specimens had also been taken from several of the UK Claimants and had been analysed by the same company using the same equipment.

The US Secretary of State for Health therefore applied for permission to obtain copies of the reports prepared by the Defendant’s experts in the UK MMR Litigation. The application was resisted by the UK Claimants on the grounds that: -

		the reports contained confidential medical information and disclosure would infringe their right to privacy under Article 8 of the European Convention on Human Rights and infringe the Data Protection Act.
		As the Defendants experts would not be called to give evidence in the US litigation, the disclosure would lead to their views being advanced without fear of contradiction creating an unfair and misleading perception.

Nevertheless the Court allowed the disclosure. The confidentiality issues could easily be overcome by anonymising the reports and the Court decided that the interest of justice required that the US Courts to have access to the UK Defendant’s reports.

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