No: C/2000/6060
Neutral Citation Number: [2001] EWCA Civ  861
IN THE SUPREME COURT OF JUDICATURE                           
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR DISCLOSURE

								Royal Courts of Justice
								                   Strand
								London WC2

Wednesday, 30th May 2001

B e f o r e:

LORD JUSTICE PETER GIBSON

LORD JUSTICE LAWS

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SOUTH

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TRUSTEES OF THE PHILLIMORE KENSINGTON ESTATE

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0171 421 4040
Official Shorthand Writers to the Court)

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MR EDWIN JOHNSON (Instructed by Messrs Fosters of London) appeared on behalf of the Appellant

MR JONATHAN GAVAGHAN (Instructed by Messrs Piper Smith Basham of London) appeared on behalf of the Respondent

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J U D G M E N T
1.	LORD JUSTICE PETER GIBSON: On 14th June this court is to hear an appeal by the tenant, Mrs South, from the decision of the Lands Tribunal. That tribunal had, between 8th and 12th November 1999, heard appeals by her and a cross-appeal by the landlords, the Trustees of the Phillimore Kensington Estate, from the Leasehold Valuation Tribunal which determined the enfranchisement premium under the Leasehold Reform Act 1967 payable for the freehold of 26 Upper Phillimore Gardens, Kensington at £2,000,075. The Lands Tribunal, on 23rd March 2000, raised that figure to £2,395,000. In reaching that conclusion the Lands Tribunal had the benefit of evidence from experts on each side. It accepted much of the evidence of the Trustees' expert, Miss Frances Joyce, a chartered surveyor, who is a director of Chesterton Plc, although she had been subjected to cross-examination for over a day.
2.	Mrs South appeals, contending for a figure of £1,200,000, alternatively for a remission back to the Lands Tribunal. Of the six grounds of appeal only one is relevant today.
3.	In ground 1 of the Notice of Appeal, which was served on 25th April 2000, it is said that the Lands Tribunal erred in law: (1) in failing when making its determination to take account (as to the credibility of the Trustees' expert evidence and/or as comparable evidence) of the valuation for the property given by Miss Joyce in two letters to Mrs South dated 15th August and 16th December 1996 respectively, and (2) in finding that the figures given by Miss Joyce were offers in negotiations and not valuations. The nub of ground 1 is that Miss Joyce's evidence was unreliable. In those letter written not long before the valuation date, that is to say 11th March 1997, Miss Joyce had given a value of £1,500,000 which Mrs South says was excellent market evidence of the value of the property at the relevant time, whereas when she gave her evidence to the Lands Tribunal Miss Joyce said that the enfranchisement price was £2,800,000.
4.	After seeing the grounds of appeal the Trustees wrote on 9th October 2000 to the Lands Tribunal asking for the notes of evidence of the Member, Mr P H Clarke. On 12th October he declined to provide those notes, pointing out that the Trustees did not state why the notes were required or how they would be helpful to this court on the appeal and saying that the evidence given at the hearing was adequately summarised in the decision. Attention was drawn to the decision of this court in Blue Circle Industries Plc v West Midlands Council (1994) 34 RVR 210 at 212 where Sir Thomas Bingham MR said:
“The standard rule should be that notes of evidence made by members of the tribunal should not be required for purposes of this court's ruling on an appeal by way of Case Stated and if, in an exceptional case, it is thought necessary for the notes to be made available, then a direction by the Registrar of Civil Appeals should be made to that effect. I wish to emphasise that in the ordinary way the notes will not be produced.”
5.	The Member said that he would release his notes of evidence if required to do so by this court.
6.	On 18th May the Trustees lodged an application with this court. It was accompanied by a statement from Miss Stella Gee of the solicitors for the Trustees; exhibited to it were Miss Gee's note of “a relevant colloquy” between the Member and leading counsel for Mrs South and the note made by leading counsel for the Trustees of the cross-examination of Miss Joyce. The Trustees seek a direction that the Member “do consider whether his notes or recollection require him to make any alterations or additions to” the notes of evidence or the note of the colloquy referred to in Miss Gee's witness statement and that “he supply the parties with an approved version of such notes”. Alternatively, they seek a declaration that the Member do make his own notes of evidence available limited to those relating to Miss Joyce's cross‑examination, or alternatively in relation to all the evidence, and his own note of the colloquy and, to the extent that he has no note in relation to the colloquy, that he comment if he can on the accuracy and completeness of the note or at the very least on whether he agrees that a colloquy of such kind did take place.
7.	The Trustees requested that an early hearing date be fixed because of the imminence of the hearing of the appeal. When the papers were put before me last week I was told that the application was for an order in advance of the appeal hearing and that it was opposed. I therefore directed that the application be heard in court; hence this vacation hearing.
8.	It is acknowledged by Mr Johnson for the Trustees that in the light of Blue Circle it will only be in an exceptional case that the notes of evidence made by the Lands Tribunal would be made available. Mr Johnson says that the appeal is exceptional for two reasons. First, he says that appeals are limited to points of law and it is a matter of dispute whether the appeal in reality raises any point of law. Secondly, he says the appeal puts in issue the Member's assessment of the evidence before him. He submits that the directions sought are necessary to enable this court, hearing the appeal, properly to consider ground 1 of the grounds of appeal. He says that that ground does not properly reflect the totality of the cross-examination of Miss Joyce and does not sufficiently deal with the fact that Miss Joyce did explain to the Member that following the two letters of August and December 1996 it became apparent to her that the value of the property in question was very much higher. He also argues that justice requires that ground 1 be considered by the court on the appeal with knowledge of the fact that Miss Joyce gave a reasoned and credible explanation for her change of view as to the value of the property and for that reason a note of evidence is required. He also says that similarly this court should know that the Member was fully aware that the credibility of Miss Joyce in regard to her change of mind was in issue. He submits that for that purpose a note of the colloquy is necessary. He has taken us to the skeleton argument that has been lodged for the appeal in which reference is made to material not contained in the statement of the facts set out in the case stated. He says that it would not be fair if this court were to hold that it was proper to look into such material but the notes of what was said orally should not be available to the court when considering the appeal.
9.	Mr Gavaghan, for Mrs South, in his skeleton argument submitted that the application should be dismissed in its entirety as it is inappropriate and made so late as to be disruptive. Alternatively, he submits that the only appropriate order is for the Member to produce his notes of evidence and no more.
10.	It is not in doubt that this court has power to make the directions requested. But in deciding whether to exercise that power it must have regard to the overriding objective in the Civil Procedure Rules Part 1 to deal with the case justly, including saving expense, dealing with the case proportionately and making sure it is dealt with expeditiously and fairly. In this context the conduct of the parties is relevant. There is no escape from the fact that the application is made extraordinarily late. Miss Gee attempts to explain the delay in her statement by saying that attempts have been made by counsel for Mrs South and the Trustees to agree notes of evidence and notes of the colloquy, a process which began in November and the last attempt to reach agreement failing only on 16th May.
11.	It has been pointed out to us by Mr Gavaghan in his skeleton argument that the grounds of appeal served as long ago as April 2000 put the Trustees on notice of what was being alleged on the appeal, that the documents in the appeal bundle were compiled last September and that there is no respondent's notice and so there is no challenge by the Trustees to any of the findings or conclusions of the Tribunal. He also relies on the comments made by the Member on 12th October in response to the Trustees' request. There is no evidence that the Trustees responded to that letter. Mr Gavaghan further says that although the Trustees' attention was drawn by that letter to the possibility of obtaining a direction from this court for the Tribunal to produce notes of evidence, no such application was made for seven months. Further, he says that Miss Gee does not disclose that there has been a five-month gap between December 2000 and May 2001 during which the Trustees took no steps to apply to this court or even to agree a note. He tells us that the last communication in 2000 was a “without prejudice” letter dated 12th December 2000 from counsel for Mrs South. In February 2001 counsel for Mrs South filed a supplemental skeleton challenging the use by the Trustees' counsel in their skeleton of their own note which did not accord with the notes and recollections of Mrs South's advisers. It was not until 14th May that an attempt was made by the Trustees to put forward a note and this was rejected on 16th May.
12.	In my judgment this application is made far too late. The Trustees' advisers have known that they wanted the notes of evidence from the Lands Tribunal since at least early as 9th October and yet despite the prompt rely from the Tribunal on 12th October they did not make good the deficiencies in their letter of request, nor did they make this application until seven months had elapsed, with the appeal hearing just three weeks away. I can understand their attempts to agree notes of evidence with Mrs South's advisers, but they have singularly failed to pursue those attempts with any sense of urgency. I would be reluctant to put the Tribunal under time pressure to produce the Member's notes of evidence in time for the appeal. They would need to be transcribed and approved by the Member before being released. They would then have to be considered by the parties. All this is at a very late stage in the parties' preparation and some disruption would be inevitable.
13.	This is an appeal by way of case stated. The function of the case stated is to set out the facts which have been found or agreed so that the appellate court can concentrate on the questions of law which alone the appellate court need consider. Here there has been no attempt to seek an amendment of the case stated if there are facts considered to be important which should have been recited in the case stated. In my judgment on the appeal this court will be bound to concentrate on the points of law. It seems to me highly unlikely that it would wish to go into any matters of fact which are not apparent on the face of the case stated.
14.	In any event, I am far from satisfied that the notes of evidence are necessary for the just disposal of the appeal. The Member's view was that the evidence had been adequately summarised in the decision. One sees from paragraphs 83 to 89 of the decision that the Member referred at length to the correspondence between the parties in the period from August to December 1996, including the two letters from Miss Joyce to Mrs South in which the figure of £1,500,000 is put forward by Miss Joyce. The charge of inconsistency levelled against Miss Joyce by Mrs South is referred to at paragraph 85 and Miss Joyce's response to that at paragraph 86. The instructions to Miss Joyce from the Trustees and their general policy are set out at paragraphs 87 and 88. The acceptance by the Member of Miss Joyce's evidence is set out at paragraph 89. There can be no doubt but that the Member was well aware that Miss Joyce's credibility was in issue. At paragraph 89 the Member said that he did not think the figures quoted by Miss Joyce in the letters diminished the credibility of her valuation evidence and he explained why, that is to say, that they were offers in negotiations and not valuations and she was not putting forward those figures as objective figures of value but of the lowest possible offers in accordance with her instructions.
15.	In my judgment, it would not be appropriate for the Trustees to try to improve on the findings made by the Member by means of obtaining notes of the evidence heard by the Member. It is unnecessary to seek notes of the colloquy to show that the Lands Tribunal was aware that the credibility of Miss Joyce was in issue. It is, in 
16.	any event, inappropriate to ask the Member the questions which the Trustees, by the directions sought, seek to have answered by him. 
17.	Mr Johnson has set out forcefully and clearly all that could possibly be said on this application. But I have no doubt, having regard to all the circumstances, that this application is one which must be refused. I would so order.
18.	LORD JUSTICE LAWS: I agree entirely. I think it very much in the public interest to preserve the procedural integrity of appeals of this kind. To do so promotes the desirable aims of clarity and economy and thus the overriding objective of the Civil Procedure Rules. For that reason and those given by my Lord, I too would dismiss the application.
	Order: Application dismissed with the costs.