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I direct pursuant to RSC Order 68 rule 1 that no official shorthand note shall be taken
of this judgment and that copies of this version when signed as approved may be
treated as authentic.
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JUDGMENT
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| 1. |
The plaintiffs are the personal representatives of Gerald Segelman deceased. The
residuary estate is substantial - in excess of £12 million - and is held on charitable trusts (see
Re Segelman[ [1996] Ch 171]). The deceased, who died
on 5th July 1992, was a collector of violins and other stringed instruments
and at his death owned a collection of violins which were valued for probate
at £2.54m. The defendant is a violin dealer and restorer, of
international eminence in his field. The plaintiffs claim that the
executors (Miss Farnsworth, Mr Leonard Segelman and the first plaintiff)
retained the defendant to locate, list and value the deceased's collection,
and that after the grant of probate that they agreed with him that he would
sell the instruments for the estate for a commission of 5% of the sale
prices achieved. The proposed prices were to be confirmed by an independent
expert. The defendant recommended Kenneth Warren & Son Ltd, Chicago,
Illinois for this purpose.
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| 2. |
Administration of the estate
has been delayed by a number of factors, but in particular by the fact that
in late 1992 a claim was put forward by Miss Farnsworth, who had been the
deceased's companion for half a century, to the proceeds of sale of one
Stradivarius violin apparently belonging to the deceased. This claim later
extended in early 1993 to a claim to virtually the whole of the deceased's
collection. This claim resulted in, first, Miss Farnsworth being removed as
an executor of the deceased's estate, and, later, an action being brought by
Miss Farnsworth in 1995 which was, eventually, compromised a year later on
terms that the claim was dismissed in its entirety, the estate paying Miss
Farnsworth's costs. That compromise was approved on Miss Farnsworth's
behalf (she being by then incapable) by an Order made by Robert Walker J. on
28th March 1996.
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| 3. |
It appeared to the first plaintiff that the defendant had been
unduly supportive of Miss Farnsworth's case and, during the course of 1996,
he made various attempts to ensure that the defendant had fully accounted to
the estate in respect of the instruments which had been in his possession
and which he had sold. On 8th August 1996 the defendant wrote to the
plaintiff's solicitors stating that there were no further funds due.
However, after further correspondence, the defendant in December 1996
produced to the first plaintiff a schedule which appeared to show that
£265,000.00 had been received by the defendant but had not been
accounted for to the plaintiffs. The first plaintiff was dissatisfied with
the information supplied and these proceedings were commenced on 20th March
1998, in the names of the first plaintiff and Leonard Segelman as
plaintiffs. On the same day those plaintiffs applied for, and obtained,
Anton Piller and Mareva orders from Jacob J..
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| 4. |
The Anton Piller order was executed on 21st March 1997 and in the
following weeks the defendant provided substantial amounts of further
information and material through an affidavit sworn by him on 14th April
1997 and in correspondence from his solicitors. Also, on 15th April 1997,
the defendant's solicitors announced his intention to make an interim
payment on account of £450,000.00, a sum which they described as almost
certainly insufficient to satisfy the defendant's duty to account. That sum
was duly paid, having been raised by the defendant by way of loan from a
business associate. In July 1997 Lloyd J. made an order removing Mr
Segelman as an executor and appointing the second plaintiff as a personal
representative of the deceased in his place. The plaintiffs engaged in a
lengthy correspondence with the defendants' solicitors as they sought to
obtain clarification of the import of the new information and material now
in their possession. One result of this was that no Statement of Claim was
served until 13th February 1998.
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| 5. |
As now appears from the Statement of Claim, the plaintiffs now perceive the
defendant's conduct of matters on behalf of the estate to be of a far graver
character than a mere failure by the defendant to account properly to them
for monies received or receivable by the defendant. On the basis of the
information obtained as a result of the orders and the ensuing
correspondence, the claims now made include the following: that the
defendant reported sales at one price when it appears that he sold the
instruments in question for substantially more and retained the difference
for himself (a claim in the region of £1.1m); that some instruments
have either been misappropriated by the defendant or the proceeds of
unauthorised sales have simply been retained (a claim in the region of
£1.6m); and that the defendant received secret commissions which appear
to exceed £0.95m.
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| 6. |
In addition the plaintiffs believe that the information now in their
possession indicates that they may have claims against persons other than
the defendants. First, they say that it appears that Kenneth Warren, the
supposedly independent valuers, were in fact the purchasers of some of the
items which they valued. Secondly they suggest that the fact that many of
the defendant's sales were to other dealers suggests that it is unlikely
that the best price reasonably obtainable was in fact obtained, especially
in the light of the fact that the defendant's relationship with such
dealers, and the various forms of profit-sharing arrangements and running
accounts, makes the ascertainment of the true price achieved in a particular
case a complex matter. Thirdly they allege that the defendant gave away two
violins to Leonard Segelman's son on an assurance that they were valueless,
and that, although these two instruments (worth £38,000.00) have now
been returned to the estate, there are probably other instruments which have
not been accounted for as part of the deceased's estate. Finally, the
plaintiffs say that the collection of 50 violins and 200 bows revealed by
the defendant's affidavit dated 14th April 1997 to have been in Miss
Farnsworth's flat at Hove, and subsequently sold by the defendant, were
almost certainly part of the deceased's collection, and that the proceeds of
sale have wrongly been distributed by the defendant to Miss Farnsworth
Leonard Segelman and Philip Segelman. The first plaintiff alleges that the
existence of this collection appears to have been deliberately concealed
from him by Miss Farnsworth Mr Leonard Segelman and Mr Philip Segelman.
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| 7. |
The defendant hotly disputes the allegations made by the plaintiffs,
particularly insofar as they involve charges of dishonesty against him. He
admits that his account keeping in respect of his sales of the collection
was grossly defective, but attributes this to various crises in his business
and personal life during the relevant period and to the fact that he has
never been "very strong in terms of paperwork and accounts". However, as to
the main allegations, the defendant's response, eloquently expressed in a
lengthy affidavit sworn for the purposes of the motions before me, has been
to attribute the claims against him to the total failure by the first
plaintiff to understand the delicate nature of the art of dealing in the
narrow and highly specialised market for fine violins. The allegations of
sales at an undervalue are, he says, largely based on the fact that
contemporaneous insurance valuations made by him show the instruments
concerned to have had a higher value than that achieved by the sale on
behalf of the estate. The explanation is that an owner's insurance
valuation will always exceed the current market value. As to the suggestion
that a sale to a dealer implies, by its very nature, that the sale is for
less than the best price reasonably obtainable, this is based on the
misconception that it may be possible to achieve a better price by some
other method. A sale to a dealer is often the only way to access a
particular list of collectors. A sale by auction may risk a flooding of the
market. The defendant is satisfied that he can prove that in every case he
obtained the best price reasonably obtainable, and that in some cases the
prices achieved on behalf of the estate were world record prices. The sale
to Warren took place because the buyer who was prepared to purchase at the
price which had been independently verified as the fair valuation
unexpectedly withdrew from the transaction. Jim Warren, the moving spirit
in Kenneth Warren & Sons, then stepped into the purchaser's shoes.
Nothing could have been more innocent. The so-called secret commissions
were not commissions at all. It is theson for his children to play has been
most unfairly laid at the defendant's door, when the suggestion was in fact
made by Miss Farnsworth and Leonard Segelman and assented to by the first
plaintiff's uncle, Jack White, in his capacity as the estate's solicitor.
The only role of the defendant was, at their request, to select the two
violins. He never suggested that they were valueless. Finally, he never
had any reason to suspect (and did not in fact suspect) that the collection
of violins and bows which Miss Farnsworth revealed to him in September 1992
as being owned by her and kept in her flat in Hove was in fact part of the
deceased's collection. On her instructions he undertook the sale of the
whole collection, bar two violins, on terms that he retained a third of the
selling price or sale value, with the remaining two thirds going equally to
Miss Farnsworth and Philip Segelman. In summary, while he accepts that his
book-keeping has been deficient and that this requires to be remedied, the
allegations that he has been dishonest are based on a tragic
misunderstanding which he wishes to have the earliest possible opportunity
of resolving. I should add that he disputes the plaintiffs' version of the
nature of his original retainer, both as to the terms on which he was
entitled to be remunerated and as to the duties, in particular the duty of
locating the instruments in the deceased's collection, imposed by the
retainer. He also challenges the suggestion that, at least as between
himself and the purchaser of any instrument in the collection, he was acting
as agent for the estate.
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| 8. |
I am not in a position to form a view as to the merits of these rival contentions on the
hearing of these motions, although it does at least appear undeniable that the relationship
between the defendant and the estate was such as to impose a duty on the defendant to account
to the estate for his actions in relation to the sale of the violins which passed through his hands
and which were known to form part of the collection. That consideration is, in my judgment,
of some relevance to the question raised by the plaintiffs' motion which is before me, namely
the extent to which the plaintiffs are entitled, or ought to be allowed, to use
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"all material disclosed on discovery herein by the Defendant including all material disclosed
pursuant to the two Orders made herein on 20th March 1997 by Mr Justice Jacob (as
subsequently varied) for the following purposes:
| | |
| (1) |
Seeking the consent of the Charity Commissioners and/or HM/Attorney General for
the taking and/or continuance of proceedings as mentioned in sub-paragraphs (2)
to (6) below;
| | (2) |
making Beddoes applications in relation to this action and/or any of the said
proceedings mentioned in paragraphs (3) to (6) below;
| | (3) |
Proceedings within or outside the jurisdiction to recover for the benefit of the estate
of Gerald Segelman deceased violins, violin bows and other property, or the
proceeds of sale thereof;
| | (4) |
Proceedings within or outside the jurisdiction against violin dealers and/or others
who purchased or purported to purchase instruments belonging to the said estate
through the Defendant on the basis of false valuations supplied to the executors of
Gerald Segelman deceased;
| | (5) |
Proceedings within or outside the jurisdiction against persons who supplied such
valuations;
| | (6) |
Proceedings within or outside the jurisdiction against Leonard Segelman and the
estate of Annie Vera Farnsworth deceased (former executors of Gerald Segelman
deceased) in respect of breaches of fiduciary duty and/or conversion."
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| 9. |
The Anton Piller and Mareva Orders were made in the standard form required by
the Practice Direction of 28th October 1996. Thus the Anton Piller order contained an
express undertaking by the plaintiffs in the following terms:
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| |
| 5) |
"Not, without the leave of the Court, to use any information or
documents obtained as a result of carrying out this Order nor to inform
anyone else of these proceedings except for the purpose of these
proceedings (including adding further Defendants) or commencing civil
proceedings in relation to the same or related subject matter to these
proceedings until after the Return Date [9 April 1997]"
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The Mareva order contained an express undertaking by the plaintiffs in the
following terms:
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| 10. |
The Plaintiffs will not without leave of the Court begin proceedings against
the Defendant in any other jurisdiction or use information obtained as a
result of an Order of the Court in this jurisdiction for the purpose of civil or
criminal proceedings in any other jurisdiction"
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| 11. |
On the Return Date (9 April 1997) Lightman J. ordered, inter alia, that the Mareva
injunction should be continued (with certain modifications), that the first plaintiff should
be at liberty to use documents and information obtained as a result of the Anton Piller order
for the purpose of removing LS as an executor of the deceased's estate, that the executors
and trustees of GS's estate should be at liberty to use such information and documents in
considering any exercise of discretion under the trusts in favour of Leonard Segelman and
his son, David Segelman and those liberties should be
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"without prejudice to the Plaintiffs' right to use such documents and
information obtained as a result of the execution of the [Anton Piller] Order
but only (save with the leave of the court) for the purposes of these
proceedings (including adding further Defendants) or commencing civil
proceedings in relation to the same or related subject matter to these
proceedings"
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|
| 12. |
In addition the plaintiffs continued the undertaking contained in the Mareva order which
I have quoted above. As I have already mentioned, Leonard Segelman was in due course
removed as an executor of the deceased's estate.
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| 13. |
For the plaintiffs it is submitted that, as a result of the wording of the undertaking
contained in the Anton Piller order, and the express recognition of their "right" in the order
of Lightman J on 9th April 1997, they do not require leave to use the material obtained as
a result of the execution of the Anton Piller order for the purposes of bringing proceedings
"in relation to the same or related subject matter as the present proceedings." In so far as
such proceedings might be regarded as "collateral or ulterior" to the present proceedings
and thus within the scope of the implied undertaking by the plaintiffs not to use the material
and information obtained as a result of the Anton Piller order (as well material obtained on
discovery in the normal way) for any "collateral or ulterior purpose" (see Customs & Excise Commissioners v AE Hamlin & Co[ [1984] 1 WLR 509 at 517H-518E]), it was submitted
that the express terms of the order overrode the implied undertaking, amounting in effect
to a grant of leave to use the relevant information and material for the purposes
contemplated by the exception. Mr Fawls on their behalf pointed out that in the case of
material obtained as a result of the Anton Piller order it needs to be borne in mind that a
purpose frequently is to discover the identity and involvement of third parties in the
Defendant's wrongdoing, and referred me to a number of authorities in support of the
proposition that a plaintiff may use such material in relation to third parties (by joining them
or commencing new proceedings against them) without leave: Sony Corporation v Anand[
[1981] FSR 398 Browne-Wilkinson J]., Bayer AG v Winter (No 2)[ [1986] FSR 357
Hoffmann J], Twentieth Century Fox Film Corp. v Tryrare Ltd[ [1991] FSR 58 Harman J.],
Levi Strauss & Co v Barclays Trading Corpn. Inc.[ [1993] FSR 179, His Honour Judge
Bromley QC.]
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| 14. |
Mr Brownbill for the Defendant submitted that the governing principle was to be
found in the judgment of Lord Oliver in Crest Homes Plc v Marks[ [1987] AC 829 at 860A-
D]. That case demonstrated that material obtained as the result of an Anton Piller order is
subject to an implied undertaking that it will be used solely for the purposes of the action
against the defendant in which it is made and that "the court will not release or modify the
implied undertaking given on discovery save in special circumstances and where the release
or modification will not occasion injustice to the person giving discovery". This was a case,
therefore, where leave was required, and there were no special circumstances justifying the
grant of leave. On the contrary the grant of leave would in the present case cause
substantial detriment to the defendant in the conduct of his defence of these proceedings:
witnesses who might otherwise be available to him would, if sued by the plaintiffs, become
unavailable; substantial delay in the progress of the present proceedings to trial would be
likely to be caused by the commencement of new proceedings here and abroad; and the
defendant should not be hampered in his desire to have an early opportunity of clearing
himself of the grave charges now brought against him, the pendency of which was having
a highly damaging effect on his business and reputation. Further, by a motion dated 30th
April 1998, the defendant seeks a variation of the undertaking contained in the Anton Piller
order so as to make it read
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"Not, without leave of the Court, to use any information or
documents obtained as a result of carrying out this Order or as a result of any other Order
of the Court, other than for the purposes of these proceedings against the Defendant."
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As to whether leave is required or not, in my judgment the position is as follows.
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| 15. |
So far as concerns the material obtained as a result of the execution of the Anton Piller order, the "right" recognised by Lightman J's order removes any requirement for
such leave, save to the extent that use of the material is sought to be made in a manner
which would contravene the express undertaking given in the Mareva order. That express
undertaking is, however, academic for present purposes since it only prevents the plaintiffs
from using the material in proceedings against the defendant in another jurisdiction (which
is not currently proposed). It is true that the purpose of the then plaintiffs in seeking the
Anton Piller order was not the common one of seeking to identify third party wrongdoers
so that to that extent the reasoning in the authorities relied on by Mr Fawls is inapplicable.
But in my judgment the construction of the relevant undertaking given on 20th March 1997,
still less of the "right" recognised by the order of 9th April 1997 (which was of course made
after the execution of the earlier order), cannot be affected by the purpose for which the
then plaintiffs originally applied to the court. The decision in Crest Homes is not in my
judgment in point: not only did that case concern the question of use of discovered material
in contempt proceedings collateral to the proceedings in which it had been discovered and
against the same defendant but it was not a case where an express undertaking in the form
here given had been exacted by the court. I accept, of course, that where leave is required
the criteria laid down by the House of Lords in that case remain the appropriate ones to
apply in deciding whether or not to grant leave.
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| 16. |
So far as concerns information provided to the plaintiffs pursuant to the Mareva
order, this is in my judgment subject both to the implied undertaking (see Derby v Weldon (No 2)[ Times 20/10/1988 Sir Nicholas Browne-Wilkinson VC]) and to the express
undertaking contained in that order. The plaintiffs do, therefore, require leave if they are
to use the information for any of the purposes for which they seek it subject to one
exception. The exception is seeking the authority of the Charity Commissioners or the
Attorney General, or of this Court in a Beddoe application, in relation to steps to be taken
by them in relation to this action: such a use seems to me clearly to be a use for the
purposes of the present proceedings and therefore not caught by the implied undertaking.
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| 17. |
So far as concerns information voluntarily supplied by the defendant in the course
of correspondence following the making of the Mareva order, no leave is required. There
is, however, a substantial grey area in which it is difficult to determine whether the
defendant was supplying information in order to remedy alleged deficiencies in his
compulsory affidavit or was volunteering it outside the scope of anything required by the
order.
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| 18. |
So far as concerns information which may be obtained as the result of future
discovery, this will clearly be subject to the usual implied undertaking and leave will be
required if the plaintiffs desire to use it for any of the proposed purposes (subject to the
exception which I have already mentioned). It seems to me to be premature for me even
to consider granting such leave before discovery has taken place, and the nature of any
material then disclosed.
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| 19. |
For these reasons it is not possible for me to make a declaration of the plaintiffs'
right (without leave) to use the material now in its possession in the terms in which that
declaration is sought. Moreover, while I have concluded that the material obtained as a
result of the execution of the Anton Piller material may be so used, the practical difficulty
of distinguishing between that material and the other material obtained compulsorily makes
it undesirable, in my judgment, that I should grant more limited declaratory relief as to what
the plaintiffs are entitled to use without leave.
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| 20. |
I turn therefore to the question whether leave should be granted in respect of the
material and information obtained in respect of which leave is required (whether it is
required only for the limited category I have identified or, if I am wrong about the Anton Piller material, for all the material and information). For the plaintiffs, the following points
are made.
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| 21. |
First, reliance was placed on the fact that the estate is held on charitable trusts. I
am quite unable to see the relevance of this. The executors' duties to get in the estate
would be the same even if the trusts were not charitable. If anything, the fact that the estate
is held on charitable trusts, that it is a very substantial one, and that the first plaintiff's firm
will be acting for it in relation to any litigation which ensues as a result of leave being
granted incline me to be very wary of granting such leave. There is a risk that the
temptation to dig deep into the pocket of the estate in order to be certain that no stone has
been left unturned may result in a multiplicity of litigation, oppressive both to the defendant
and others who become embroiled in it, and not necessarily productive of a net benefit to
the estate itself.
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| 22. |
Secondly, it was submitted that the matters complained of have been deliberately
concealed by the defendant and those against whom plaintiffs wish to proceed. As to this,
the extent to which there has been deliberate concealment by the defendant is very much
in issue in these proceedings; and the suggestion that those against whom the plaintiffs wish
to proceed have joined in the deliberate concealment might carry more weight if the
plaintiffs were in a better position to identify for me the alleged wrongdoers and
particularise the allegations of deliberate concealment against them. It may be, however,
that this submission was aimed solely at the dealings with the so-called Farnsworth
collection.
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| 23. |
Thirdly, it was submitted that the defendant owed the estate fiduciary duties as an
agent. He can have no legitimate complaint that matters which he has revealed only under
compulsion are used to get in the estate's assets if they are matters which he was under an
independent duty to disclose to the plaintiffs. This seems to me to be a powerful point, and
one which serves to distinguish the present case from the typical case where no such
independent duty exists. The plaintiffs' use of material to which they are entitled
independently of the orders which have been made cannot be said to work injustice to the
defendant. As I have already mentioned, it seems undeniable that the relationship between
the estate and the defendant was, whatever its true nature may eventually be held to have
been, one which necessarily involved a duty on the defendant to make candid disclosure of
all his dealings on its behalf. It is true that this duty will not have extended, or may not have
extended, to his dealings with instruments which were claimed by Miss Farnsworth as
having been her own and whose true ownership has not yet been established. I deal
separately with this category later in this judgment.
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| 24. |
Fourthly, it was submitted that if information and material voluntarily supplied in
correspondence is not subject to any implied or express undertaking, a substantial amount
of information may be used without leave and accordingly it will cause no additional
detriment to the defendant if the compulsorily disclosed material may also be used by the
plaintiffs. There is some force in this point, but its edge is blunted by the inability of the
plaintiffs (and the court) to distinguish between the two types of material and therefore to
establish that the grant of leave will not in fact cause additional detriment to the defendant.
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| 25. |
I have already summarised the defendant's particular objections to the grant of
leave, namely the danger that the commencement of other proceedings will delay the trial
of this action and will hamper the defendant in the obtaining of exculpatory evidence from
abroad. As to these points, I accept that the commencement of other proceedings may well
delay the final determination of the present proceedings and I accept that the defendant has
a legitimate interest in bringing to trial as quickly as possible the serious charges that have
been levelled against him. He is not, however, in a position where he has himself sought
directions for a speedy trial, and given the past history of the matter he cannot reasonably
expect that the plaintiffs will be satisfied by all the explanations which he has furnished to
date and may furnish in the future, unless they themselves are, at least in certain respects,
able to verify those explanations by reference to independent sources of information. I also
accept that the commencement of proceedings against persons who might otherwise have
been willing witnesses for the defendant in these proceedings may inhibit those witnesses
(as the result of advice from their local lawyers) from giving the defendant and his solicitors
the easy co-operation which might otherwise have been expected. At the end of the day,
however, it is to be expected that the evidence available to the defendant in support of his
case in these proceedings will be the same.
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Two other, more general, points were made on behalf of the defendant.
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| 26. |
First, it was submitted that the width of the leave sought by the plaintiffs was such
that, if granted, it would grant them almost unlimited authority to bring claims of an
unspecified nature against whole classes of unspecified persons. It was said that, without
knowing precisely against whom the plaintiffs wish to proceed and for what, it is not
possible to determine the full extent of any prejudice against the defendant that may be
caused. Mr Fawls responded to that by indicating that the omission to identify particular
targets in his notice of motion had been deliberate, and designed to avoid alerting them as
to what might be in contemplation. Against an undertaking by Mr Brownbill that it would
not be disclosed to his client, he produced a list of potential defendants. That did not cause
Mr Brownbill to elaborate any further on his theme of possible detriment to the defendant.
in this respect.
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| 27. |
Secondly, Mr Brownbill developed, at considerable length, a submission that I
should be influenced in my decision as to whether or not to grant leave by the consideration
that the Anton Piller order ought never to have been applied for in the first place, and that
it had been improperly obtained on the basis of non-disclosure of material information by
the first-named plaintiff in his affidavit in support. He placed before me a list of the alleged
omissions (consisting of some four and a half pages of typescript) which I shall not attempt
here to summarise. In the absence of an application to set aside the order, the allegations
seem to me to be beside the point. Many of them in any case boiled down to the allegation
that the first plaintiff must have realised well before the application was made that what he
was faced with was not dishonesty but simply appalling negligence in accounting for large
sums of money, and that the first plaintiff had himself been dilatory and negligent in chasing
up the defendant over information previously sought but not supplied.
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| 28. |
Mr Brownbill further submitted that the application was premature in two respects.
He urged that the scope of the present proceedings might well be substantially reduced
before trial as the result of the defendant being able to satisfy the court (or the plaintiffs)
that particular allegations against him were unsustainable, and that it would be wrong to
give leave to use material against third parties before its relevance to the present
proceedings had been finally determined. Secondly, he suggested that discovery by the
plaintiffs themselves might give him a basis on which to attack the Anton Piller order itself,
and that it would be unfair not to allow for this possibility. I did not find either of these
propositions very persuasive, particularly in the light of the fact that much of the
information now in the possession of the plaintiffs was plainly information to which the
estate was entitled from the defendant in any event. Had they had that information in the
first place it would have been a matter for them (subject to any authority from the Charity
Commissioners or the Court which they deemed it prudent to obtain) as to what use to
make of it. In the final analysis it is that consideration which I find to be decisive in favour
of granting the plaintiffs the leave which they seek in relation to the material now in their
possession and in respect of which I have held that leave is required.
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| 29. |
That last consideration does not apply to information which has been obtained as
to the disposal of the instruments claimed as having been separately owned by Miss
Farnsworth. The existence of any duties owed by the defendant to the plaintiffs in relation
to those instruments is very much in issue in these proceedings. However, in relation to this
issue, the possible third party defendants are obvious (see paragraph 1(2) of the general
endorsement to the writ) and I am unable to see that any real detriment to the defendant,
either in terms of delay or in terms of inhibition of witnesses, if leave is granted to use the
material now in the possession of the plaintiffs for the purposes of proceedings against such
persons.
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| 30. |
For these reasons, I will make an order granting leave in terms of paragraphs 1 of
the plaintiff's notice of motion with the deletion of the words "all material disclosed on
discovery herein by the Defendant including" and the addition, immediately before the
words "for the following purposes" of the words "and all other material supplied to the
Plaintiffs by the defendant or his solicitors in correspondence prior to the date of this
Order". Having come to the conclusion that leave should be granted, separate
consideration of the defendant's motion is unnecessary, and I shall dismiss it without
considering the question (which was debated before me) as to whether the court can vary
an undertaking given by a plaintiff on the application of a defendant.
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