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IN THE GRAND COURT OF THE CAYMAN ISLANDS
HOLDEN AT GEORGE TOWN, GRAND CAYMAN
CAUSE #389 OF 1992
BETWEEN:
AND
(1) INTERNATIONAL CREDIT AND INVESTMENT
COMPANY (OVERSEAS) LTD
(In Liquidation)
(2) FINANCE AND INVESTMENT
INTERNATIONAL LIMITED
(1) SHAIKH KAMAL ADHAM
(2) FAISAL SAUD AL FULAIJ
(3) GHAITH RASHAD PHARAON
(4) PHARAOH HOLDINGS LIMITED
(5) LHASA INVESTMENTS LIMITED
Plaintiffs
(7) CONCORDE INTERNATIONAL TRADING SA
Defendants
For the plaintiffs:
Charles Purle QC and Ewan McQuater of Counsel
instructed by Hunter & Hunter
For the defendants:
HARRE C.J.
Richard McCombe QC, Ramon Alberga QC and
Anthony Trace of counsel instructed by
Myers & Alberga
RULING
Among the reliefs sought by the Fifth and Seventh defendants
in their summons dated 14th of July is an order that the parties be at
liberty to adduce expert evidence at trial.
It was agreed that the
experts should be a forensic document examiner, a chartered accountant
and an expert in banking regulation matters.
The point at issue is
whether these reports should be simultaneously exchanged, as is the
normal practice, or in sequence.
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I will refer at some length to note 38/35/2 in the English
Supreme Court Practice because it sets out the principles.
It is
there said that the objects intended to be achieved by the rules
include avoiding surprise at the trial, securing where possible,
agreed expert reports, identifying matters of expert opinion which are
really in controversy between the parties and enabling the experts
themselves to prepare their evidence more thoroughly and helpfully.
Machinery for the pretrial disclosure of expert evidence is intended
to operate on the basis of fairness and mutuality as between the
parties and, conversely, neither party should be able or should be
allowed to operate such machinery so as to overreach any other party
by obtaining the disclosure of the party's expert evidence before the
trial without at the same time disclosing his own expert evidence to
that party or being precluded from calling such expert evidence at the
trial.
To achieve such fairness and mutuality
the machinery is
intended to operate so as to provide for the simultaneous exchange of
experts' reports on or before a fixed date.
The normal rule of
practice will be subject to variations subject to special
circumstances of particular cases but always the overriding
consideration will be to maintain fairness and mutuality between the
parties.
Importantly, the terms of the rules do not limit the powers
of the court in the orders that it can make for the disclosure of
experts reports.
I will deal with each class of expert separately.
Obviously
the defendants cannot instruct a "forensic document examiner" until
they know which forensic document or documents the plaintif~propose
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to have examined by their own expert.
Equally obviously, if reports
are to be simultaneously exchanged, each expert will need enough time
to examine the documents.
That is a physical problem and I have no
knowledge of its extent.
If the examination has to be sequential the
presentation of the reports may have to be sequential also.
What the
court requires is an indication from the plaintiffs, in the context of
the further submissions as to timing of the reports which will follow
this ruling in any event as to how this may be addressed.
The factors relating to the other two experts are different.
The experts on banking regulation will have to give their views on the
allegation that if the Financial statement of ICIC had not been
falsified its banking licence would have been withdrawn, it would have
ceased to trade, and would not have suffered the loss and damage
claimed.
The accounting experts will give their views on what the
state of the accounts of ICIC would have been if they had been
properly presented.
I have here to look at the function and relationship of
pleadings, particulars and evidence.
I have already considered that
the amended pleadings sufficiently perform their function.
The
particulars given are already very lengthy and the list of the first
plaintiff's documents is not only long but indicative of the way in
which the records of the first plaintiff were kept.
Whatever may be
the difficulty of the liquidators in this regard, they must be at some
advantage as against the fifth and seventh defendants.
\
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These experts will have to address themselves to particulars.
Mr. Traces
argument was indeed about particulars, but in my view well
based nevertheless.
It is not enough, in my view, for the plaintiff to say in
this context that the gist of the case is plain from what the
defendants already have.
A balance of fairness can, in my judgment,
best be achieved by having sequential reports from these two experts,
with questions of timing, as agreed last week, to be the subject of
further submissions.
G. E. Harre
Chief Justice
1st August 1994.