WHEELOCK MARDEN & CO. LTD. and Others v. AKTIESELSKABET DANSK SKIBSFINANSIERING

IN THE COURT OF APPEAL

1994, No. 224
(Civil)

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J U D G M E N T

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Bokhary, J.A.:

1. Barnett J has been seised of this case for a long time now. In that time, he must have acquired a good "feel" for it. That feel would encompass what it involves and what its fair trial requires.

2. I am not prepared to reverse his view that the matters covered by the 4th Interrogatory are relevant. Nor am I prepared to interfere with his exercise of discretion ordering that interrogatory and adhering to that course even after our judgment of July 30, 1994.

3. I would dismiss this appeal.

Liu, J.A.:

4. On 7 December 1994, Barnett J refused to stay or rescind his Order made on 3 June 1994 insofar as it enjoined the "individual defendants" to answer Question 4 of the plaintiff's Interrogatories. Question 4 relates to the knowledge, if any, of each of the "individual defendants" of the contents of certain letters and advice, if any, given as to the contents of these letters. From that refusal, the plaintiff now appeals.

5. In addition to the references made by Mr Smith to the pleadings, knowledge of or in the alleged fraudulent trading is clearly one of the facts directly or indirectly in issue, as to which interrogatories may be administered. Advice, if any, provided with such knowledge falls into the same category. See 1995 White Book Vol. 1, p.490 marginal reference 26/1/2.

6. Paragraph 29 which raises an allegation of fraudulent trading, is linked to the original paragraph 4.3. See Particulars (2) under paragraph 29 of the Re-Amended Consolidated Statement of Claim. Knowledge of or in fraudulent trading has always been a fact in issue. This is the position today and it was the position before Mr Justice Barnett prior to the previous appeal to this Court. The plaintiff was then entitled to require its Interrogatory 4 with respect to fraudulent trading to be answered. That was in fact ordered by Barnett J. Even should the plaintiff be held for any reason to be disentitled to an answer to Interrogatory 4, the same order would have been regranted to the plaintiff if a fresh application had been made to the judge on 7 December 1994.

7. The pleading of fraudulent trading has never been questioned. A fact in issue for the sufficiently pleaded and hence valid allegation of fraudulent trading may be interrogated. What is before us is not a pleading point. We are merely considering whether interrogatories may be administered as to attendant facts in an unchallenged pleaded allegation, such as knowledge and any advice given with such knowledge. In this appeal, the Court is not called upon to entertain pleading points.

8. The exercise of discretion by the Judge in ordering an answer to Interrogatory 4 relating to such facts in issue cannot be faulted. Given Mr Smith's statement that paragraph 29 raises solely the question of fraudulent trading, for the reasons I have given Barnett J was right in refusing to stay or rescind his order that an answer be made to Interrogatory 4.

9. I, too, reach the same conclusion as that just pronounced by My Lord, Mr Justice Bokhary.

[Costs]

Bokhary, J.A.:

10. Costs to the respondent in any event.