Favor Easy Management Ltd & Anor v Wu & Anor

This is an appeal from the decision of Norris J given during a trial, indeed during the cross-examination of one of the parties. The case concerns the ownership of a small hotel in London W14, purchased in late 2007 or early 2008 with monies provided by the second claimant, Mr Lee. It is common ground that the 1^st Defendant Ms Wu, was employed as Mr Lee's PA, to use his expression, and that he paid money for her benefit and that of his family. She says that there was a sexual relationship between them, but Mr Lee denies that is so.

Mr Lee and the 1^st claimant, Favor Easy Management Limited, incorporated in the Seychelles, seek a declaration that the hotel and the adjoining property are held on trust for the co-claimant, or alternatively for Mr Lee, and for other relief. The claim was brought after the property had been acquired by another company also called Favor Easy Management Limited, which was incorporated in the British Virgin Islands and is the second defendant, of which Ms Wu was and remains the sole director and shareholder.

As mentioned, one of the main issues between the parties is whether there was, a sexual relationship between Mr Lee and Ms Wu, as Ms Wu alleges and Mr Lee denies. Mr Lee gave evidence and was cross-examined. Ms Wu gave evidence and was cross-examined, and, during her cross-examination, it was put to her that a document, signed or purportedly signed by a Dr Wong dated 23 January 2009, was a forgery, at least insofar as it referred to the fact that she had been "pregnant for 20 weeks": It was also put to her that she had forged that document and had handed it to Mr Lee to suggest to him that she was pregnant as part of her alleged blackmailing of him, which forms the subject matter of an ongoing private prosecution brought by Mr Lee against Ms Wu.

When this was put to Ms Wu in cross-examination, she replied that she had not been responsible for forging this document, if it was forged, and that she had not seen it before. She said that she had handed Mr Lee a document from another doctor, Dr Yeung, and that there may have been some confusion on the part of Mr Lee or his advisers in that connection.

There then followed a request to Ms Wu by Mr Anthony Trace QC, who appeared below as he does before us with Mr Ciaran Keller for Mr Lee, to authorise Dr Wong and Dr Yeung to produce their respective files, she consented to that. Mr Peter Crampin QC, who appeared below as he does before us with Mr Ulick Staunton for Ms Wu, then asked whether he could give her advice in that connection even though she was in the witness box. Norris J agreed, and, as a result of that advice, Ms Wu withdrew her consent. It appears that Dr Wong was prepared, and Dr Yeung may have been prepared, to release their respective files if Ms Wu agreed. On her withdrawing her consent, Mr Trace on behalf of Mr Lee, sought a determination by the judge that the files of Dr Wong and Dr Yeung, who were both doctors in Hong Kong, should have been disclosed pursuant to the standard disclosure obligations of Ms Wu under CPR 31.6, either with her list in the normal way, or pursuant to her ongoing obligation to disclose pursuant to CPR 31.11.

In a judgment, which we have in unapproved, but commendably clearly expressed form, Norris J refused the application. He said this:

The judge then considered three arguments advanced by Mr Trace and concluded that the only argument which had any possible weight was that which questioned whether Ms Wu was pregnant in January 2009, which was an issue that went to her credibility.

In my opinion the judge was right: the issues of whether Ms Wu was pregnant, whether she forged the certificate apparently signed by Dr Wong, and whether there is a certificate signed by Dr Yeung, are all matters which go to her credibility, but to no other issue. If she had been pregnant, that would not prove that she had a sexual relationship with Mr Lee, because she could have been made pregnant by another person. Equally, if she had not been pregnant, that would not mean that she did not have a sexual relationship with Mr Lee: Mr Lee’s evidence is that Ms Wu was taking birth control precautions, which emphasised how right that must be.

Accordingly, I proceed on the basis that the question of Ms Wu’s pregnancy and the question of what Dr Wong's records and Dr Yeung's records show would very probably go to Ms Wu’s credibility, but to no other issue.

CPR 31.6 is in these terms:

“Standard disclosure requires a party to disclose only –

(a)

the documents on which he relies; and

(b)

the documents which –

(i)

adversely affect his own case;

(ii)

adversely affect another party’s case; or

(iii)

support another party’s case; and

(c)

the documents which he is required to disclose by a relevant practice direction.

CPR 31.12 deals with specific disclosure:

“(1)

The court may make an order for specific disclosure or specific inspection.

(2)

An order for specific disclosure is an order that a party must do one or more of the following things –

(a)

disclose documents or classes of documents specified in the order;

(b)

carry out a search to the extent stated in the order;

(c)

disclose any documents located as a result of that search.

The question whether those rules apply in the present case is one which had been assumed by all the parties until just after the time that the matter came on for hearing in this appeal. However, there is a logically anterior question, namely whether the documents in the possession of Dr Wong and Dr Yeung were within the scope of Part 31 at all. That question was raised by the court, and Mr Trace and Mr Crampin fairly admitted that it was not a point that either of them had considered. It seems to me, at any rate as at present advised, that there must be a strong argument for supporting the view that the documents on the files of the two doctors were not in the possession, custody or control of Ms Wu. That point may depend on the law of Hong Kong, given that where Dr Wong and Dr Yeung are based and where their files are presumably located, and if they saw Ms Wu, where they would have seen her.

The mere fact that one or each of the Doctors agreed to produce his file if Ms Wu agreed, does not to my mind necessarily mean that the documents were within her control. In that connection, it appears unclear whether Ms Wu actually contacted Dr Yeung, because she said she could not find his address, according to Mr Trace. On the face of it that makes it rather difficult to say that the file was within her control.

However, I am prepared to proceed for present purposes on the assumption made below, namely that the files do fall within the potential ambit of Part 31.

So far as standard disclosure is concerned, one can easily see how, as a matter of ordinary language, it can be said that documents which might impugn the veracity or credit of one of the parties could be said to fall within 31.6(b)(i), in that they "adversely affect his [or her] own case" or, by contrast, "support another party's case".

However, when it comes to documents which relate purely to credit, there is a powerful case for saying that they do not fall within the ambit of CPR 31.6(b). The issue was considered in this court under the previous Rules of the Supreme Court in Thorpe v Chief Constable of Greater Manchester Police [1989] 1 WLR 665. RSC Order 24 Rule 2.1 provided that any documents were discoverable if they " relat[e] to any matter in question between the parties”

In his judgment, after referring to the fact that Order 24 rule 8 also referred in the discovery context to "disposing fairly of the cause or matter", Dillon LJ then said this at 669A:

Neill LJ then went on at 673A:

“At first sight there is some force in the argument that documents which may contain material to impugn the credit of one party might well enable the other party to advance his case. So too it can be said that in a case such as the present, where the defendant has access to police records and other material which might be useful for the cross-examination of the plaintiff, fairness requires that the defendant should give discovery of any documents which relate to the ‘characters of the two police officers.

I am satisfied, however, that it has been the long-standing practice not to order discovery which is directed solely to credit. It is sufficient to refer to the decision of the Court of Appeal in Kennedy v Dodson [1895] 1 Ch. 334 and to the decision of Walton J in George Ballantine & Son Ltd v F.E.R Dixon & Son Ltd [1974] 1 WLR 1125.

The existence of this limitation on the right to discovery is also recognised in Ord. 26, r.1(4), which is concerned with discovery by means of interrogatories. This paragraph in the following terms:

‘A proposed interrogatory which does not relate to [any matter in question between the applicant and the other party in the cause or matter] shall be disallowed notwithstanding that it might be admissible in oral cross-examination of a witness.’

The reason for this limitation on discovery is plain. Discovery in an action would become gravely oppressive and time-consuming if there were an obligation on a party to disclose any document which might provide material for cross-examination as to his credit-worthiness as a witness. The present practice is a salutary one which helps to keep discovery within reasonable and sensible bounds.”

In my opinion, for the purposes of CPR 31.6, Thorpe v Chief Constable of Manchester remains good law. Just as one can argue, as Mr Trace eloquently did, that CPR 31.6(b), as a matter of ordinary language covers documents which purely go to impugn the credit of a party, that was equally true in relation to RSC Order 24 Rule 21, as explained by Neill LJ. The reason for the qualification, which was not so much laid down as confirmed in Thorpe v Chief  Constable, and explained most fully by Neill LJ at the end of the passage which I have quoted from his judgment, continues to apply.

Mr Trace made the point that the Civil Procedure Rules are intended to be a flexible regime. There is some force in that. It may very well be, although it would be inappropriate for us to decide in this case, that CPR 31.12, which is concerned with specific disclosure, can be invoked in an appropriate case by a party seeking disclosure of documents to impugn the credit of another party. CPR 31.12 is not expressly limited to CPR 31.6, and does not refer to standard disclosure, and I note that CPR 31.6 is linked to CPR 31.5, which again is concerned with standard disclosure. I can, therefore, see a real argument for saying that CPR 31.12 would, in an appropriate case, enable the court to order disclosure of documents falling within the exception laid down in Thorpe and the Chief Constable. However, it would be inappropriate and unnecessary to decide that point here.

Accordingly it seems to me clear that there can be no question of Ms Wu having to disclose any of the documents in the two doctors' files in connection with an attack on her and it, under standard disclosure.

Mr Trace had another argument, namely that once Ms Wu relied in her cross-examination on Dr Yeung's alleged certificate, then, reading CPR 31.6(a) and CPR 31.11(i) together, she at that point at least became under an obligation to disclose Dr Yeung's certificate. I do not agree. She did not “rel[y]” on the certificate in the sense in which that word is used in CPR 31.6(a). She was merely using it as a shield in cross examination. To hold otherwise would be to undermine the whole point of the exception in Thorpe and would result in the conduct of many trials becoming extremely unsatisfactory, because, as soon as a party referred to any document in cross-examination, the other party could immediately seek disclosure of that document as a matter of right. That is not the law. (of course, there will be cases where disclosure should be ordered in such circumstances but this is not such a case).

That is enough to dispose of this appeal as I see it, but there are two further points which should be mentioned. The first is in my view the procedure which has been adopted here was at least questionable. It seems to me that the sole purpose of the issue being determined by Norris J during Ms Wu’s evidence, was to seek his ruling as to whether or not the files should be disclosed: it was not to obtain an order that they be disclosed. If that is right, the only purpose of seeking the order was to enable Mr Trace to comment in his closing speech about the inferences which the judge should draw from Ms Wu having failed to disclose the documents. If that was indeed the only purpose, then there was no need to have a ruling during the hearing, let alone to interrupt the hearing for the purpose of an appeal. Mr Trace could have made his point in closing, Mr Crampin could have answered it, and the judge could have reached a conclusion on it in his judgment if it mattered.

The second point that, even if it would have been open to Mr Lee to make an application for specific disclosure of the two doctors’ files under CPR 31.12 (i) then I strongly doubt whether the judge should have acceded to such an application. I say that for two reasons. First, it seems clear that Mr Lee and his advisers have been well aware of the existence of Dr Wong and Dr Yeung, and the fact that Ms Wu had visited them or had said that she had visited them, as long ago as July 2009. Mr Lee’s solicitors had written three letters in the context of these proceedings in July 2009, June 2010 and July 2010, seeking at least some of the contents of those two doctors' files, but no application was made for specific disclosure despite the fact that those letters went unanswered. My second reason reflects what Black LJ said in argument about proportionality. There was plenty of evidence for the judge to make the necessary findings, so far as I can see, and for the parties to rely on in support of any contention they wanted to make. To have ordered specific disclosure at such a late stage would to my mind to have been questionable, to say the least. However, it is only right to say that that observation is based on a very limited knowledge of the totality of the evidence and arguments below.

As it is, I would dismiss this appeal.

I agree with Lord Neuberger that the medical records which are the subject of Norris J's ruling go only to the credit of Ms Wu as a witness and were not therefore disclosable under the provisions of CPR 31.6 as part of standard disclosure, having regard to the principles set out in the judgment of this court in Thorpe v Chief Constable of Manchester. But, even if we had been of a different view about that, I remain, as my Lord does, unconvinced that the course adopted by Norris J of ruling on this point during the evidence was the right one to adopt in the circumstances of this case. A duty to give standard disclosure is, of course, a continuing one. If therefore a document which is, on the face of it, disclosable is mentioned during the course of evidence and is relied upon by one of the parties to the proceedings, the more normal course would be for the other party to seek an order for specific disclosure. That is the usual and, as far as I can see, the only appropriate remedy for the non-disclosure of an otherwise disclosable document. Although that is not made entirely clear by the provisions of CPR 31.12, it is, I think, made clear by the provisions of the Practice Direction to CPR 31 in paragraph 5.1 which provides that if a party believes that the disclosure of documents given by the disclosing party is inadequate he may make an application for an order for specific disclosure.

I emphasise this point because, as the Practice Direction goes on to make clear in deciding whether or not to make an order for specific disclosure and this is paragraph 5.4, the court is required to take into account all the circumstances of the case and, in particular, the overriding objective described in Part  1 of the Rules. That, of course, necessarily involves the court in making a determination as to whether the order for disclosure would, in the circumstances of the case, be proportionate. It seems to me that the judge should either have invited Mr Trace to make such an application or should have continued with the trial until such an application came to be made.

For those reasons, I would also dismiss this appeal.

I agree with both judgments and do not wish to add anything.

I would add that I agree with the additional comments of Patten LJ.