IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION
Case No: HC01C03415
PREAMBLE Such 'skeletons' are meant under the Court rules to be sent to the opposition several days in advance of the hearing, especially when the opponent is a litigant acting person. In this instance, Oxford's 14-page skeleton was handed to me as I walked into the courtroom and the judge had to order an adjournment of one hour, at Oxford's expense, to give me a chance to read it. Ha-ha. It soon became obvious that nothing would have made any difference anyway. - A. M.
2. Ready Mixed Concrete (South East) v. Minister of Pensions and National Insurance [1968] 2 QB 497
3. Salisbury v. Woodland [1970] 1 QB 324
4. Heatons Transport v. TGWU (HL) [1973] AC 15
5. Reardon-Smith Line Ltd v. Hansen-Tangen [1976] 1 WLR 989
6. Pioneer Shipping Ltd v. BTP Tioxide Ltd [1982] AC 724
7. Armagas v. Mundogas SA (The Ocean Frost) [1986] AC 717
8. Shell Co of Australia Ltd v. National Shipping Bagging Services Ltd [1988] 2 Lloyd's Rep 1, 16
9. Rush and Tompkins v. GLC [1989] AC 1280
10. ICS v. West Bromwich Building Society [1988] 1 WLR 896
11. Unilever v. The Procter and Gamble Co [2001] 1 WLR 2436
12. Somatra v. Sinclair Roche & Temperley CA [2000] 1 WLR 2453
13. Swain v. Hillman [2001] 1 All ER 91
14. Three Rivers DC v. Bank of England (No. 3) [2001] 2 All ER 513
15. Interlink Express Parcels v. Night Trunkers Ltd CA [2001] EWCA Civ 360
16. Montgomery v Johnson Underwood Ltd [2001] EWCA Civ 318; [2001] IRLR 269, CA
17. Anyanyu v. South Bank Student Union HL [2001] 1 WLR 638
18. Schuler AG v. Wickman Machine Tool Sales Ltd [1974] AC 235
19. Miramar Maritime Corporation v. Holborn Oil Trading [1984] AC 676
20. Prenn v. Simmonds [1971] WLR 1381
21. Bowstead and Reynolds on Agency, 17th edition, para 1-001, 1-022, 8-177
22. Chitty on Contracts 28th edition, 32-002, 32-008, 39-002
23. Picarda, Law and Practice relating to Charities, 2nd edition page 380
24. Matthews & Malek, Disclosure pp 273-275
25. Meridian Global Funds Management Asia Ltd v. Securities Commission PC [1995] 2 AC 500
26. Marengo v. Daily Sketch and Sunday Graphic [1948] 1 All ER HL 406
Page and tab references are to the defendants' bundle of documents except where otherwise indicated (page references at bottom right-hand corner of pages). It has not been possible to agree the bundle with the claimant, who has submitted a separate bungle.
Core documents for reading before hearing if possible - see separate list attached.
A signed time estimate is also attached.
Introduction
1. The claimant's claim is for an injunction restraining the defendants, their servants and agents or any of them, and in particular Dr Alan Ryan, from "further" breaches of an agreement dated 1 July 92 ("the Agreement") (Particulars of Claim, D3 tab 1). The claimant alleges that by reason of Dr Ryan's letter published in the Times Higher Education Supplement ("the THES") on 13 April 2001, the defendants were in breach of the Agreement.
2. The defendants have applied for summary judgment against the claimant under CPR Part 24, 24.2, alternatively an order that the claimant's claim be struck out (under an CPR Part 3, 3.4(2)), on the grounds that:
(a) The claimant has no real prospect of succeeding on the claim on the evidence (under CPR Part 24, 24.2).
(b) the statement discloses no reasonable grounds for bringing the claim, and/or it is an abuse this abuse of process (under CPR Part 3, 3.4 (2)).
(D17 tab 3; C's bundle page 162, crimson divider)
In summary, the defendants' case, developed further below, is that whether or not Dr Ryan's letter was derogatory of the claimant, he is not and was not the defendant(s); is not and was not as at 13 April, 2001 a servant of the defendants; and did not write the letter to the THES in the capacity of defendants' agent.
Background
3. The University of Oxford is a civil corporation established under common law, formally incorporated by statute in 1571. Its corporate name is "the Chancellor Masters and Scholars of the University of Oxford" (witness statement of Mr Holmes ("DRH ws") para 4, D 20 tab 4). See also the Law and Practice relating to Charities, Picarda, 2nd edition at page 380 (authorities bundle, tab 23):
"the colleges of Oxford and Cambridge are charitable corporations, but, strictly speaking, the universities of Oxford and Cambridge are not. They are civil corporations of a very special kind."
In 1986 the claimant began High Court proceedings, following the decision of Oxford University Press ("OUP") not to publish his work Making Names. OUP is a department of the defendants and, accordingly, the claimants claim was made against them (the affairs of OUP being in the charge of the Delegates of the University).
The claimant succeeded on appeal, and following an enquiry as to damages, the parties settled the matter. The parties signed a consent order on 1 July 1992, to which the agreement was appended (DRH ws paras 5-6, D 20-21 tab 4; consent order D 30-32 tab 5).
4. Clauses 7 and 8 of the Schedule to the consent order stated:
"7. The defendants agree that they, their servants and agents, or any of them, will not publish or solicit the publication of any derogatory statements, letters or articles about the plaintiff or about the merits or quality of the plaintiff's work Making Names. For the purpose of giving effect to this undertaking, the defendants may disclose the text of this term to their servants and agents from time to time. The defendants further agree to request Alan Ryan, Henry Hardy and Richard Charkin not to publish or solicit the publication of any derogatory statements, letters or articles about the plaintiff or about the merits or quality of the plaintiff's work Making Names.8. The undertakings contained in paragraphs 6 and 7 hereof are of unlimited duration."
5. Dr Ryan was one of the individuals involved in the events which had led to the original dispute between the claimant and OUP. In 1985/1986, he was a Fellow of New College, Oxford, a Reader of the University of Oxford, the Assessor of the University of Oxford and a Delegate of OUP. However, by July 1992, when the Agreement was signed, Dr Ryan had left Oxford. He was by then at Princeton University University (DRH ws para 7, D 21 tab 4).
The claimant's claim for an injunction
6. The claimant's claim for an injunction is based on the letter from Dr Ryan published in the THES on 13 April 2001. The full text of the paragraph that the claimant complains of reads as follows:
"Third, the book wore badly on re-reading; what had seemed fresh, lively and amusing seemed coarse and jeering the third time around. Perhaps the reading climate had changed, perhaps it was always a book that should be read once only. But I never changed my initial view; that OUP should have published a thousand copies and seen if they sold - the press was not poor and a few quid on an outsider was a worthwhile bet.
Alan Ryan
New College, Oxford"(D 33 tab 5)
[Note. The defendants do not concede that this constitutes a "serious public derogation of Making Names", as the claimant alleges in his Particulars of Claim. Although they do not seek summary judgment/and strike out on this ground, they would rely on it if there were to be a trial.]
The legal framework for applications for summary judgment/to strike out
7. The court may give summary judgment against a claimant on the whole of a claim under part 24.2 of the CPR if:
(a) it considers that
(i) the claimant has no real prospect of succeeding on the claim or issue; or...(b) there is no other compelling reason why the case or issue should be disposed of at a trial.
(CPR Part 24, 24.2, White Book Vol 1 page 396)
8. The words 'no real prospect of succeeding' were considered by the House of Lords in the Swain v. Hillman [2001] 1 All ER 91 (authorities bundle, tab 13) and:
"... do not need any amplification, they speak for themselves. The word 'real' distinguishes fanciful prospects of success or as Mr Bidder QC's submits, they direct the court to the need to see whether there is a 'realistic' as opposed to a 'fanciful' prospect of success" (at page 92j per Lord Woolf).
If, on the evidence, there is no real prospect of the claimant succeeding at trial, the court may therefore award a summary judgment in favour of the defendants.
9. The court may strike out a statement of case under Part 3.4 if it appears to the court:
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings;
(CPR Part 3, 3.4 (2) (a) and (b), White Book Vol 1 page 49)
10. The court's powers to strike out were considered by the House of Lords in Three Rivers DC v. Bank of England (No. 3) [2001] 2 All ER 513 (authorities bundle tab 14). CPR 3.4 (2) (a) is concerned with cases in which the pleadings show no proper cause of action (Three Rivers per Lord Hutton at paras 116, 119, page 549, 550). CPR 3.4 (2) (b) is concerned with cases in which the proceedings are an abuse of process for some other reason. Thus, if a statement of case does not disclose a reasonable cause of action it may be struck out under CPR 3.4.2 (a) (per Lord Houghton at para 119-120, page 550). If the statement of case does not disclose a reasonable cause of action but the claimant has no real prospect of succeeding on the evidence available to adduce at trial, it may be struck out under CPR 3.4.2 (b), as an abuse of process (per Lord Hutton at para 120, page 550). There is very considerable overlap between CPR part 24 and CPR 3.4, and many cases falling within CPR 24 also fall within CPR 3.4 (see White Book Volume 1, para 3.4.6, page 52-53).
The defendants' application for summary judgment/to strike out
11. The defendants' case is straightforward. It is essentially the same on both parts of their application.
12. First, it should be noted that the claimant does not allege in his Particulars of Claim that Dr Ryan was acting as the defendants' servant or agent when he wrote to the THES. The statement of case therefore discloses no reasonable grounds for bringing the claim, within the meaning of CPR 3.4 (2) (a); and there is no real prospect of succeeding within the meaning of CPR 24.2.
13. Second, and more importantly, even if it were assumed in favour of the claimant, as a litigant in person, that he intended to make such an allegation, and he were given permission to amend accordingly, he would still have no real prospect of succeeding within the meaning of CPR 24.2, because he would not have any prospect of proving that case. For the same reason, his claim would be an abuse of process within the meaning of CPR 3.4.2. It is clear on the evidence that Dr Ryan was neither the defendant(s) nor a servant of the defendants; nor was he acting as the defendants' agent when he sought publication of the letter.
The identity of "the defendants" in the Agreement
14. Dr Ryan is not one of "the defendants" referred to in clause 7 and 8 of the Agreement. The defendants in the original proceedings, and hence the parties to the agreement, were the civil corporation, and not the individuals comprising the chancellor, masters and scholars. The defendants are plainly not "an empty class" as alleged by the claimant (C's ws para 77, C's bundle, first tab page 16) - see Meridian Global Funds Management Asia Ltd v. Securities Commission PC [1995] 2 AC 500 per Lord Hoffman at 506 (authorities bundle, tab 25). The claimant's claimed in those proceedings was effectively against OUP, which, as explained above, is part of the civil corporation. See, for example, the first instance judgment, 23 March, 1990 per G Lightman QC at page 1:
"In this action the plaintiff, Mr Andrew Malcolm, sues the University of Oxford, who carry on the business of publishers and printers under the style of Oxford University Press."(claimant's bundle, vol 2, page 189, tab AM2)
15. Furthermore, if Dr Ryan had been one of the "defendants" within the meaning of the agreement, the last sentence of clause 7 would have been otiose.
Dr Ryan not the defendants' servant or agent
16. The claimant cites in his Particulars of Claim a number of positions or roles held by Dr Ryan (Particulars of Claim para 7, D3 tab1). From these, the court is, the defendants assume, expected to infer that Dr Ryan was the defendants' servant or that he acted as the defendants' agent for the purpose of writing to the THES. It is clear from the evidence of Mr Holmes that this is not so.
[Note. The claimant suggests that "officers" should be taken to be included by the phrase "servants and agents" - Para 84 of his witness statement, C's bundle, first tab, page 18. This is incorrect. An office-holder is distinct from an employee - see 102 Social Club v Bickerton EAT [1977] ICR 911 at 919.]
17. Mr Holmes considers each position in turn in his witness statement. Briefly:
(a) Dr Ryan is employed as Warden of New College by New College. New College is a wholly separate legal entity from the defendants (DRH ws para 11, D 22 tab 4; statutes of New College D34-47 tab 5).
(b) The title of professor is simply a title of distinction which does not involve employment by the defendants or confer any authority on Dr Ryan to act on behalf of the defendants (DRH ws para 12, D 23 tab 4; statutes of the University of Oxford 1997, D 48, tab 5; Guidance on Recognition of distinction D 49-64, tab 5).
(c) Similarly, membership of the Conference of Colleges does not involve an employment relationship with the defendants or any authority to act on behalf of the defendants as agent. The Conference represents the common concerns of several colleges of the University of Oxford; negotiates with central university bodies on collegiate matters; appoints members of joint university/college committees, and carries out various other functions. Dr Ryan in any event ceased to be chairman of the Conference on 30 September 1999 (DRH ws paras 14-16, D 24 tab 4; extract from handbook on Conference of Colleges, D 91 tab 6).
(d) Membership of Congregation does not arise out of, or give rise to, any contract of employment, nor does it confer or any authority to act on the defendant's behalf as agent (DRH ws para 13, D 23 tab 4; statutes of the University of Oxford 2000, D 65-67 tab 5). The claimant's contention that the Congregation is synonymous with the Chancellor, Masters and Scholars of the University is entirely unmeritorious.
(e) Finally, as Director of the Rothermere American Institute, Dr Ryan has authority to act on behalf of the defendants for certain limited purposes, but not for the purpose of writing letters such as the one complained of (DRH ws para 19, 20, D 25-26 tab 4; documents relating to the General Board, minutes of American Institute Programme Committee, Buildings Committee and Board of Faculty of Modern History, D 68-79 tab 5; letter Jeremy Whiteley 23 July 2001, D 83 tab 5).
Dr Ryan not the defendants' servant
18. The term "servant" means a person under a contract of service (see Interlink Express Parcels v. Night Trunkers Ltd CA [2001] EWCA Civ 360 (authorities bundle tab 15) per Arden LJ at para 29, page 12); such contracts are also commonly referred to as contracts of employment (see Chitty on Contracts 28th edition, 39-002 page 788, authorities bundle tab 22). One of the conditions that must be fulfilled for there to be a contract of service is that there should be mutuality of obligations, ie remuneration in return for work (Montgomery v Johnson Underwood Ltd [2001] EWCA Civ 318; [2001] IRLR 269, CA (authorities bundle tab 16) per Buckley J at para 18 page 271, para 20-23, page 272; Ready Mixed Concrete (South East) v. Minister of Pensions and National Insurance [1968] 2 QB 497 (authorities bundle tab 2) per McKenna J at 515).
19. The claimant's claim falls at the first hurdle. There is no mutual obligation between Dr Ryan and the defendants. While Dr Ryan has done a small number of paid lectures in autumn 2001, and did a small amount of paid examining and supervising for the defendants in the year to 5 April 2001, he is under no obligation to do this, and the defendants are under no obligation to offer him the opportunity to do this kind of work or to pay him for it (witness statement of Mr Stone, page 2, paras 6-8). Dr Ryan is not always paid for these lectures, and when he is paid for work carried out, he is paid for each piece of work separately. It is therefore entirely clear that he is not, and was not at the material time, the defendants' servant.* The claimant has no prospect of succeeding on that ground
* [Note. It is therefore unnecessary to consider the other indicia which the court is often called upon to consider when determining whether an individual has a contract of service on the one hand, or a contract for the services on the other - such as the degrees of control exercised by the "employer"; whether the worker is properly regarded as part of the employer's organisation; whether the worker is carrying on business on his own account; provision of equipment; incidents of tax and national insurance; the parties' own views of their relationship, etc.]
Dr Ryan not the defendants' agent for this purpose
20. The remaining question is whether the claimant has any real prospect of succeeding in showing on the evidence that Dr Ryan was acting as the defendants' agent when he solicited publication of his letter. The claimant does not have any such prospect, for the reasons set out below:
(a) "Agency" is the fiduciary relationship which exists between two persons, one of whom expressly or impliedly consents that the other should act on his behalf so as to affect his relations with third parties, and the other of whom similarly consents so to act or so acts. The party who is to act is the agent (Bowstead and Reynolds on Agency, 17th edition, para 1-001 page 1, authorities bundle tab 21)).
(b) The use of the term "agent" in a formal document, to which English principles of interpretation are to be applied, is presumed to be used in its proper legal connotation (ie that of a person having power to bind his principal) unless there are strong indications to the contrary (Shell Co of Australia Ltd v. National Shipping Bagging Services Ltd [1988] 2 Lloyd's Rep 1, 16 per Sir Denys Buckley (in a dissenting judgment) (authorities bundle tab 8); see also Chitty, para 32-008 page 5 (authorities bundle tab 22), and Bowstead para 1-022 page 12) (authorities bundle tab 21).
(c) As has been set out above, with the exception of his position as Director of the Rothermere American Institute, none of Dr Ryan's positions or roles give him any authority to act on behalf of the defendants.
(d) As Director of the Rothermere American Institute, Dr Ryan is authorised to act on the defendants' behalf in certain limited respects, including employing and dismissing staff (DRH ws para 19-20, D 25-26 tab 4). He therefore is (and was) an agent of the defendants for those limited purposes.
(e) However, Dr Ryan was not authorised by the defendants to write to the THES in relation to the claimant on their behalf. He did not in fact purport to write to the THES on their behalf; the letter was signed "Alan Ryan, New College, Oxford". The defendants did not authorise, instigate, or even know about the particular letter in question (DRH ws para 22, D 26 tab 4).
[Note. See Marengo v. Daily Sketch and Sunday Graphic [1948] 1 All ER HL 406 at 407 per Lord Uthwatt (authorities bundle tab 26)]
21. As a matter of contract law, a principal is bound by the act of his agent where the agent has authority or apparent authority to do the act (Freeman v. Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 at 502, 503 per Diplock LJ, authorities bundle tab 1). Apparent authority comes about when the principal, by words or conduct, has represented (or allowed it to be represented) that the agent has the requisite actual authority (Armagas v. Mundogas SA (The Ocean Frost) [1986] AC 717 at 777 A-B per Lord Keith, authorities bundle tab 7). In this case of Dr Ryan clearly had neither actual nor apparent authority to write to the THES about the claimant.
22. As a matter of tort law, a principal is liable for loss or injury caused by his agents act only a) if the wrongful act was specifically instigated, authorised or ratified by the principal (see eg Heatons Transport v. TGWU (HL) [1973] AC 15 at 99 C-D per Lord Wilberforce, authorities bundle tab 4); b) if the wrongful act amounts to a breach by the principal of a duty personal to himself for which liability cannot be avoided by delegation, for example in cases where work is likely to cause danger (Salisbury v. Woodland [1970] 1 QB 324 at 338 B-C per Widgery LJ and at 345 A-C per Harman LJ authorities bundle tab 3); and c) possibly, if the agent makes a statement in the course of representing the principal, named within the actual or apparent authority of the agent (see Bowstead, para 8-177 page 420, authorities bundle tab 21). The claimant has no real prospect of succeeding on any of these tests. The second category of liability obviously does not apply. The claimant would therefore have to show that the defendants gave actual, or at the very least apparent, authority to Dr Ryan to solicit publication of the letter. Again, it is clear from Mr Holmes' evidence that they did not do so.
23. The claiment therefore cannot succeed in showing that the defendants, their servants or agents, solicited publication of the letter. Clause 7 of the Agreement applies only to an act of an agent of the defendants if it is an act carried out by the defendants through or by that agent - ie if the defendants have authorised or, possibly, apparently authorised that act.* That is the true construction of the contract, applying the usual principle, set out in Pioneer Shipping Ltd v. BTP Tioxide Ltd [1982] AC 724 at 736 D-C per Lord Diplock, authorities bundle tab 6) that the court's object is to ascertain the parties' mutual intentions as to the legal obligations each assumed; or, "perhaps more accurately," what each would have led the other reasonably to assume were the acts that he was promising to do or to refrain from doing by the words in which the promises were expressed. The test is an objective one - the intention which reasonable people would have had if placed in the situation of the parties, and the meaning which the document would convey to a reasonable person with all the reasonably available background knowledge (Reardon-Smith Line Ltd v. Hansen-Tangen [1976] 1 WLR 989 at 996 E per Lord Wilberforce - authorities bundle tab 5; ICS v. West Bromwich Building Society [1988] 1 WLR 896 at 912 H - 913 D per Lord Hoffman - authorities bundle tab 10).** The court should therefore also adopt the construction which minimises interference with freedom of expression, and the risk of breach, or of contempt, and is consistent with common sense.*** This is also of course, the construction contended for by the claimant's solicitors in their letter of 11 May 2001 (D 165A, tab 7).
[Notes.
* For the purpose of this application, the defendants are prepared to argue on the basis that apparent authority would be sufficient. If the matter proceed to trial, they reserve the right to argue that that on the true construction of the contract, apparent authority is not enough and that there must be actual authority.
** See also Schuler AG v. Wickman Machine Tool Sales Ltd [1974] AC 235 per Lord Reid - the court will take into account the reasonableness of the result of a particular construction (authorities bundle tab 18)
*** Miramar Maritime Corporation v. Holborn Oil Trading [1984 AC 676 at 682 per Lord Diplock (authorities bundle tab 19).]
Case suitable for summary judgment/strike out
24. This is not therefore a case in which there is any need for the court to try issues of fact at a full trial. The claimant does not have a credible alternative factual case to put forward. Nor would he have any credible basis at trial for disputing the evidence in the case.
25. This is, therefore, a suitable case for summary judgment;
(a) It is important that in appropriate cases the court should make use of the powers contained in CPR part 24, in order to give effect to the overriding objectives of saving expense, achieving expedition, avoiding the the futile use of the court's resources and achieving justice for the parties (Swain v. Hillman, per Lord Woolf MR at page 94 b, cited by Lord Hope in Three Rivers at para 93 - authorities bundle tabs 13 and 14).
(b) While it is not intended that Part 24 should dispense with the trial where there are issues which should be investigated at the trial (Swain v. Hillman, above, per Lord Woolf MR at 95 b), this is not a case in which the issues need to be investigated further. It is clear beyond question that the facts which the claimant alleges and (albeit impliedly rather than expressly) are contradicted by the documents and evidence (see the test set out by Lord Hope in Three Rivers at para 90 page 541, authorities bundle tab 14). The claimant therefore has no real prospect of succeeding.
(c ) There is no other reason , pursuant to CPR part 24, why a disposal of the claimant's claim should await trial.
26. Further, or in the alternative, the claimant's claim falls into that category of cases which is suitable for striking out, identified by Lord Hutton in Three Rivers at para 120 page 550, authorities bundle tab 14. Taking into account the evidence that will be available at trial, the claimant's claim cannot succeed. He will simply not be able to show that Dr Ryan was the defendants' servant, or that he acted as their agent in soliciting publication of his letter. This case is therefore entirely different from a case such as Anyanyu v. South Bank Student Union HL [2001] 1 WLR 638 (in which the House of Lords emphasised the undesirability of striking out fact-sensitive cases (per Lord Steyn at page 647 B-C), authorities bundle tab 17). In this case, the claimant cannot credibly dispute any of the defendants' evidence on Dr Ryan's status, and indeed there can be no real dispute on the facts.
[Note. It should be noted that the defendants also alleged that the claimant is in breach of clause 6 and 7 of the Agreement, by reason of his website on which he has disclosed information about the terms of the Agreement. Although the defendants do not seek to rely on this in support of their application for summary judgment/strike out, they would of course rely on it if there were to be a trial.]
Claimant's application to refer to Without Prejudice correspondence.
27. Finally, the claimant relies in both his Particulars of Claim and his witness statement on correspondence headed "without prejudice" (para 6, Particulars of Claim, D 3 tab 1). The defendants object of this in their Defence, (para 6, D 7 tab 2). The claimant has indicated that he will apply at the hearing to be permitted to refer to this correspondence. The defendants oppose this application, on the grounds that:
a) The correspondence is wholly irrelevant to this claim.
b) Evidence to prove admissions by a party in the course of genuine negotiations to settle actual or contemplated litigation is inadmissible in any subsequent litigation connected with the same subject matter.* But the concept of admissions must be given a wide meaning so as to include all matters disclosed or discussed in the without prejudice discussions concerned (Unilever v. The Procter and Gamble Co [2001] 1 WLR 2436 at 2448 H - 2449 B per Robert Walker LJ; Rush and Tompkins v. GLC [1989] AC 1280 at 1299 per Lord Griffiths - authorities bundle tabs 11 and 9).
* [Note. The claimant's argument that without prejudice privilege lapses once there is a binding agreement between the parties is a wrong - see Rush and Tompkins v. GLC [1989] AC 1280 at 130 - authorities bundle tab 9).
c) Although without prejudice correspondence may be admitted for other purposes, and where the justice of the case requires it (see Matthews and Malek on Disclosure, para 9.115 (authorities bundle tab 24); Unilever v. The Procter and Gamble Co at 2444 D - 2445 G per Robert Walker LJ (authorities bundle tab 11); Somatra v. Sinclair Roche & Temperley CA [2000] 1 WLR 2453 at para 27 per or Clarke L J (authorities bundle tab 12)), the claimant's purpose in referring to it is unclear. Equally, it is unclear how the justice of the case could require it to be referred to. If the claimant's purpose is to rely on a correspondence as evidence of the parties' intentions, of course he is not entitled to do so (Prenn v. Simmonds [1971] WLR 1381 at 1385 H per Lord Wilberforce, authorities bundle tab 20).
The Honourable Michael Beloff QC
Jane Collier
10 January, 2002 (served 14 January - see Preamble)
Blackstone Chambers
Blackstone House
Temple
London EC4Y 9B