Bermuda International Securities Ltd v KPMG (a firm) [2001] EWCA Civ 269

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION (COMMERCIAL COURT)

Mr Justice Timothy Walker

[2001] EWCA Civ 269

Case No Case No: B1/2000/2393

Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Tuesday 27 February 2001

Between

Bermuda International Securities LtdRespondent/ Claimant

KPMG (a firm)Appellant/ Defendant

Before

Lord Justice Waller

Lord Justice Clarke

Lord Justice Rix

Mr M Brindle QC, Miss P Hamilton (instructed by Messrs Cameron McKenna for the Respondent)

Mr R Knowles QC, Mr D Allison (instructed by Messrs Stephenson Harwood for the Appellant)

Date 27 February 2001

LORD JUSTICE WALLER :

This

[1]is an appeal from Timothy Walker J who on 9 th June 2000 made an order for pre-action disclosure under CPR 31.16 in favour of the respondents (BISL) against the appellants (KPMG). The order he made, for convenience, I append hereto. He also refused to order BISL to pay either the costs of the application or the costs of providing the documents despite the presumption under CPR 48.1 that any costs of the application or the provision of pre-action disclosure should be paid by the party seeking the same. He refused permission to appeal, as did my Lord, Clarke LJ, but permission to appeal was granted after an oral hearing by May LJ on both aspects. CPR 31.16

[2]It is convenient to deal first with this aspect of the judge's ruling. CPR 31.16 provides as follows:- "Disclosure before proceedings start(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started.

(2) The application must be supported by evidence.

(3) The court may make an order under this rule only where - (a) the respondent is likely to be a party to subsequent proceedings; (b) the applicant is also likely to be a party to those proceedings; (c) if proceedings had started, the respondent's duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and (d) disclosure before proceedings have started is desirable in order to - (i) dispose fairly of the anticipated proceedings; (ii) assist the dispute to be resolved without proceedings; or (iii) save costs.

(4) An order under this rule must - (a) specify the documents or the classes of documents which the respondent must disclose; and (b) require him, when making disclosure, to specify any of those documents - (i) which are no longer in his control; or (ii) in respect of which he claims a right or duty to withhold inspection.

(5) Such an order may - (a) require the respondent to indicate what has happened to any documents which are no longer in his control; and (b) specify the time and place for disclosure and inspection."

[3]Section 33 of the Supreme Court Act 1981, which was amended to give affect to the recommendation contained in "Access to Justice" Final Report, Section III, Chapter 12 paras 37-52, provides as follows:- "Powers of High Court exercisable before commencement of action(1) On the application of any person in accordance with rules of court, the High Court shall, in such circumstances as may be specified in the rules, have power to make an order providing for any one or more of the following matters, that is to say - (a) the inspection, photographing, preservation, custody and detention of property which appears to the court to be property which may become the subject-matter of subsequent proceedings in the High Court, or as to which any question may arise in any such proceedings; and (b) the taking of samples of any such property as is mentioned in paragraph (a), and the carrying out of any experiment on or with any such property.

(2) On the application, in accordance with rules of court, of a person who appears to the High Court to be likely to be a party to subsequent proceedings in that court ... the High Court shall, in such circumstances as may be specified in the rules, have power to order a person who appears to the court to be likely to be a party to the proceedings and to be likely to have or to have had in his possession, custody or power any documents which are relevant to an issue arising or likely to arise out of that claim - (a) to disclose whether those documents are in his possession, custody or power; and (b) to produce such of those documents as are in his possession, custody or power to the applicant or, on such conditions as may be specified in the order - (i) to the applicant's legal advisers; or (ii) to the applicant's legal advisers and any medical or other professional adviser of the applicant; or (iii) if the applicant has no legal adviser, to any medical or other professional adviser of the applicant. "

[4]The points for the judge were thus:- A Were BISL likely to become a party to proceedings, and were KPMG likely also to be a party to those proceedings i.e. in this case were BISL likely to sue KPMG?; B If so, were KPMG. likely to have in their possession custody or power documents relevant to an issue "arising or likely to arise out of that claim"?; C If so, did the circumstances as specified in the rules exist to provide the jurisdiction to order "those documents" to be disclosed and produced to the applicant's legal advisers, and/or any other professional adviser? [It is noteworthy that under the section it is not particular documents, but the documents that would otherwise ultimately have been produced on discovery under the old rule O.24 with which the section appears to have been concerned]. D Under CPR 31.16 the circumstances additional to those already made a requirement by the section, are that an order should "only" be made where:(i) if the proceedings had started the respondent's duty by way of standard disclosure would extend to "the documents or classes of document of which the applicant seeks disclosure";

(ii) disclosure of the documents before proceedings have started is desirable to dispose fairly of the proceedings; assist the dispute to be resolved without proceedings; or to save costs. E An order must specify the documents or classes of documents and must require the respondent to comply with 4(b). The order may require compliance with 5. The details of 4(b) and 5 are not relevant to this appeal, but the compulsion to specify may be of relevance. Background

[5]BISL is a manager of investment trusts and in particular was manager of Siam Selective Growth Trust a fund which was set up in early 1990. KPMG were the auditors and tax agents of the fund from March 1990. The fund was subject to the United Kingdom tax regime. It operated and was approved by the Inland Revenue as an investment trust for the purposes of s.842 of the Income and Corporation Taxes Act 1988 (ICTA). Responsibility for ensuring that the fund complied with s.842 of the ICTA rested primarily with BISL. Sub-section 1 of that section states that in order to be approved as an investment trust for any year of account, the fund must not invest more than 15 per cent of its total assets in any one company (including shares in that company's subsidiaries). Under BISL's Management Agreement, clause 5.1.2.1 BISL were required to ensure that not more than 10 per cent of the fund's total assets were invested in any one company including shares in that company's subsidiaries.

[6]In September 1993 the fund held shares in Shinawatra Computers and Communications Public Company Limited ("Shinawatra") and in certain of its subsidiaries. The fund also held a modest number of shares in a company called Advanced Information ("Advanced"). The value of the shares in Shinawatra and its subsidiaries was increasing very rapidly and in or about August/September 1993 the fund made significant purchases of further shares in Advanced which was also a subsidiary of Shinawatra.

[7]During the period September 1993 until December 1994, BISL were calculating their holdings on a cost basis rather than a market valuation basis. Towards the end of 1994 certain directors of BISL became aware of the possibility that this calculation was on a wrong basis. In December 1994 KPMG were involved in assisting with checking valuations as at certain key dates at which it was feared possible that the fund may have been in breach of s.842.

[8]There was also an issue as to whether Advanced was a subsidiary of Shinawatra and whether shareholdings in Advanced should be brought in to the calculations as part of the Shinawatra group.

[9]During December 1994 the revaluations were completed. These revaluations showed that even on key dates the 15 per cent limit was not breached. These revaluations were circulated to BISL, KPMG and the directors of the fund, and the directors of the fund confirmed in January 1995 that the valuations were prudently carried out and the assumptions were verifiable.

[10]However, during the course of 1996 a decision was taken to liquidate the existing fund in order to create a new close ended fund. KPMG was nominated to be the liquidator. At this point KPMG as liquidator were not satisfied that s.842 had not been breached. Ultimately the fund had to accept that there had been breaches of s.842 in December 1993 through to July 1994. That resulted in the Inland Revenue revoking the investment trust status of the fund for accounting periods ending 31 March 1994 and 31 March 1995. The Inland Revenue raised assessment as to tax for the accounting periods ending 31 March 1994, and 1995.

[11]After extensive negotiation with the Inland Revenue a compromise was reached in the sum of £4,250,000. BISL under their Management Agreement accepted the obligation to reimburse the fund in relation to the above figure.

[12]BISL claim that KPMG as auditors or tax agents were also liable to the fund. The allegation is that KPMG acted negligently in auditing the fund or conducting the tax affairs of the fund over the periods for accounting periods ending 31 March 1991 to 31 March 1995.

(c) :

"Failure to take reasonable steps to ensure that any or any adequate system was in place for the purpose of monitoring the fund's compliance with s.842 and/or clause 5.1.2.1" and at paragraph 17(e): "

Failure to detect or to take reasonable steps to detect that until about December 1994 an erroneous valuation method (at cost price rather than market value) was being used to compute the value of the fund's holdings at the dates of additions to the Shin holding for the purpose of s.842 compliance".

[13]KPMG, during correspondence between the respective solicitors, by letter dated 9 May 2000 gave a considered response to the allegations made by BISL. In essence that response asserted that clause 5.1.2 was an adequate system for ensuring no breach of s.842 imposing as it did investment responsibility on BISL. In answer then to the specific complaints e.g. that no reasonable steps were taken to ensure that there was an adequate system, the answer was first that it was no part of an auditor or tax agent's duty to "ensure" that the client had an adequate system, but in any event that clause 5.1.2.1 was such an adequate system. Furthermore it is asserted that on 3 June 1993 KPMG discussed with the fund the formal controls required for monitoring compliance with s.842. That meeting is alleged thus to have taken place 6 months before there was any breach on 8 December 1993.

[14]In relation to failures asserted as against KPMG after December 1994, the answer of KPMG has been that whatever shortcomings there were causation is not established in that breaches had by that date already occurred. It is in answer to such a case that Mr Brindle QC in argument developed an assertion that even after breaches had taken place if they had been appreciated KPMG could have advised the fund to cap their years i.e. declare a shortened year so that the tax liabilities otherwise incurred would not have been so great.

[15]KPMG also assert in their letter of 9 May 2000 that in any event, since the responsibility was that of BISL, it could not be just and equitable to hold KPMG responsible.

[16]The position thus is that in 1996 KPMG clearly took one view about the valuation of investments. It seems likely that KPMG as tax advisers and/or auditors took a different view in December 1994 and probably before that. There are clear issues to be tried as to whether KPMG as auditors and/or tax advisers owed any obligation in relation to setting up a system for the purpose of avoiding any breaches of s.842, and whether they are right in suggesting that the relevant paragraph of the Management Agreement was a sufficient system. There is furthermore no challenge to the judge's finding that it is impossible to decide the just and equitable point at this stage of the proceedings.

[17]Mr Knowles QC did not seriously challenge that if proceedings were commenced and standard disclosure were to be ordered, it would include documents from the audit files and tax files of KPMG for the audit year ending 31 March 1992 through to the audit year ending 31 March 1995. Correspondence leading to application

[18]Correspondence between BISL and KPMG and their advisers commenced on 9 November 1999. In the very first letter BISL sought disclosure of documents from KPMG. KPMG suggested that compliance with the draft professional negligence pre-action protocol required a detailed letter from BISL. It furthermore suggested that wholesale disclosure of files was premature and disproportionate. In the result, on 3 February 2000 solicitors acting for BISL forwarded a draft witness statement of Mr Stewart in support of the application for pre-action disclosure and exhibiting draft particulars of claim as well as a draft order setting out the classes of documentation to be disclosed.

[19]Stephenson Harwood's response on behalf of KPMG was to say that they intended to review their client's documents and provide a considered response to the claim. They asserted in that letter that the request for pre-action disclosure was, in the least, too widely drawn. They further said that they would consider whether it was sensible to include some documentation with the response anticipated. Cameron McKenna for BISL pressed for an answer to the question whether pre-action disclosure would be made. Cameron McKenna ultimately issued their application prior to receiving the considered response. Ultimately the considered response was the letter dated 9 May 2000 to which I have already referred. That letter appended no documentation but did state after refutation of the whole claim, that "your clients may wish to reconsider the request in the light of this letter. We make clear that KPMG is prepared to consider a request for particular documents".

[20]It was in those circumstances that the application came on before the judge. The application

[21]There was no dispute thus that BISL and KPMG were likely to become parties to proceedings.

[22]There was no dispute that KPMG had within their possession custody or power documents relevant to an issue arising or likely to arise between BISL and KPMG. The issues before the judge and the issues before us were [and I deliberately reverse the order because that is in reality how the matter was argued],(a) whether it was desirable to order pre-action disclosure for any of the reasons under (d) i, ii, or iii;

(b) whether KPMG's obligation of standard disclosure if proceedings were commenced would extend to the documents being sought; and

[23]At certain times in Mr Knowles' arguments the questions became to some extent interlinked, and that is no criticism of the submissions he made. I would summarise those submissions in the following way. First he accepted that pre-action disclosure was a useful tool and it was not his client's intention to try and emasculate that power. But he submitted that it would be most unfortunate if it became the norm in all actions of professional negligence that pre-action disclosure should be sought before the issues between the parties had been properly identified. He submitted that on the whole the right occasion on which to identify the issues was at the case management conference. He submitted that it was on that occasion that the court would assist in seeing that costs were not wasted by requiring disclosure of documents where in truth no issues arose. He submitted that the width and timing of the request in this case carried with it the risk that some documents would at this stage be disclosed, even though it would ultimately transpire that the documents did not adversely affect KPMG's case, or adversely affect BISL's case, or support either case i.e. would not be required to be disclosed under the obligation of standard disclosure under CPR. 31.6. He suggested that the judge had erred in principle in ordering pre-action disclosure in this case and that the Court of Appeal should use the opportunity to provide guidance as to the exercise of the power to order pre-action disclosure, that guidance he hoped to lead to his clients and other accountants or professionals not being harried by applications for pre-action disclosure. As he put it, it is important that the approach does not become "let us start with the documents and then we will define the issues."

[24]Mr Knowles took us through the correspondence between the solicitors for the parties. He suggested that BISL were determined right from the start even before producing a draft particulars of claim, to obtain pre-action disclosure (and the correspondence would certainly bear that out); that they drafted and indeed issued their application before KPMG had provided their detailed letter of response. Mr Knowles was critical of the fact that BISL had not modified their request for documents following that letter and was critical of the failure by BISL to take advantage of the offer in that letter to supply any "particular document" which BISL could identify.

[25]Mr Brindle submitted that this was not a case in which the Court of Appeal should contemplate issuing guidelines. He submitted, putting the matter shortly, that the judge carefully identified the issues and carefully analysed the requirements of CPR 31.16. He submitted thus that this was a case where the judge had exercised a discretion and where the judge had not misdirected himself and where thus the Court of Appeal simply should not interfere.

[26]I do not think it is appropriate for the Court of Appeal, at this early stage in the life of this new rule, to lay down guidelines. The warning in the judgment of the court in In re Atlantic Computer Systems Plc

[1992] Ch 505

at 541 (prior it is fair to say to making some general observations) is apposite in this case. Guidelines tend to be treated as something more. The new rule allows the court in certain circumstances to order pre-action disclosure. It will be applicable in a vast range of cases, and it is peculiarly for judges in their case management role to work out the circumstances in which pre-action disclosure will be ordered. The circumstances spelt out by the rule show that it will "only" be ordered where the court can say that the documents asked for will be documents that will have to be produced at the standard disclosure stage. It follows from that, that the court must be clear what the issues in the litigation are likely to be i.e. what case the claimant is likely to be making and what defence is likely to be being run so as to make sure the documents being asked for are ones which will adversely affect the case of one side or the other, or support the case of one side or the other. The court must then form a view whether the case is one in which pre-action disclosure is desirable for one or other or all of the reasons set out in CPR 31.16(3)(d). In that regard I can see that as Mr Knowles submitted, there is almost a two stage process of first assessing whether the order would help in the disposal of the proceedings fairly; whether it would assist in resolving the dispute without proceedings; and whether it would save costs. If it formed the view that an order will do any of the above, it will then consider whether it is desirable to make the order. Despite a possible saving in costs in terms of the pleading that could be produced, it might not think it desirable to make the order if for some reason the court was of the view that the order did not assist in disposing of the anticipated proceedings fairly e.g. by imposing an unfair burden on the defendant. The word "desirable" brings into play the balancing exercise that time and again judges will have to exercise in carrying out their case management powers under the CPR.

[27]As I see it the judge directed himself impeccably in this case. He identified the issues between the parties. He formed the view that KPMG had no "knock out" answer to BISL's case, and Mr Knowles did not challenge that view of the judge. He considered whether KPMG's duty of standard disclosure would apply to the documents being sought and on that basis excluded the 1991 and 1992 years of the audit files and commenced the tax agent files as from 1 st April 1992. He then considered whether the pre-action disclosure was desirable and formed the view it was on the following bases.(i) There would be a saving of costs, since those pleading BISL's case would with the documents be likely to be able to plead their case with more particularity and without the need for later amendment and/or re-amendment.

(ii) KPMG had already reviewed the documents and thus it was no burden to hand them over.

(iii) He further thought that the production might assist in the disposal of the case without the commencement of proceedings either because BISL's advisers would be able to see that no criticism could be made of KPMG and/or that the causation arguments of KPMG were sound, or because a document demonstrated some support for BISL's case which might persuade KPMG to shoulder some part of the burden.

[28]The judge furthermore took account of Mr Knowles' argument that the meeting offered by KPMG should take place before production of the documents. He took the view I would suggest unsurprisingly that a meeting was unlikely to be productive without the production of the documents.

[29]In my view the exercise of the judge's discretion to make an order in this case simply cannot be impugned. What Mr Knowles sought to do was to suggest that the result of this order might be that certain documents might be produced which ultimately at a case management conference might have been excluded from standard disclosure, and he attacked the width of the application. I accept that the order made by the judge reads as though it is of great width because it starts by referring to audit files for certain years, but the reality is that the order only applies to documents relating to the key issue between the parties i.e. any consideration given or not given by KPMG as auditors or tax managers to s.842 and compliance therewith, and issues within that issue relating to clause 5.1.2.1. There may be cases where the court will not be able to be confident that the documents sought on pre-action disclosure will necessarily relate to issues to which standard disclosure will be bound to apply, and indeed there may be cases where without pleadings and detailed analysis of the issues which can only take place at the management conference, it will not be possible to contemplate exercising the power to order pre-action disclosure, but that in my view was not this case. Costs

[30]CPR 48.1 provides as follows:- "Pre-commencement disclosure and orders for disclosure against a person who is not a party(1) This paragraph applies where a person applies - (a) for an order under - (i) section 33 of the Supreme Court Act 1981; or (ii) section 53 of the County Courts Act 1984, (which give the court powers exercisable before commencement of proceedings); or (b) for an order under - (i) section 34 of the Supreme Court Act 1981; or (ii) section 52 of the County Courts Act 1984, (which give the court power to make an order against a non-party for disclosure of documents, inspection of property, etc).

(2) The general rule is that the court will award the person against whom the order is sought his costs - " (a) of the application; and (b) of complying with any order made on the application.

(3) The court may however make a different order, having regard to all the circumstances, including - (a) the extent to which it was reasonable for the person against whom the order was sought to oppose the application; and (b) whether the parties to the application have complied with any relevant pre-action protocols."

[31]As the judge recognised there is clearly a presumption in favour of KPMG in relation to both the costs of the application and the costs of complying with any order made. In the argument before him little distinction may have been made between the costs of the application and the costs of complying. The judge's attitude was that KPMG should not have dug their heels in to the extent that they did, and that thus a costs order should not be made in their favour.

[32]Before us when it was put to Mr Brindle on what basis it was proper for KPMG to be deprived of the costs of complying with any order, he was quick to accept that he could think of none. In my view it is important that it is recognised that in relation to pre-action disclosure, the cost of the actual exercise will be paid by the applicant for that disclosure. But so far as the application is concerned if it has been unreasonably resisted, those are the very circumstances contemplated where the order for costs may be different.

[33]In this case KPMG were really resisting the production of documents root and branch. Their reference in their letter to "particular" documents does not assist them since they clearly meant only "particular" documents. They were obviously concerned about the precedent that might be set, but in circumstances where the issue is in fact a narrow one and readily ascertainable, and where they themselves have already reviewed the documents and it was no burden to hand them over, it was certainly open to the judge to make the order for costs that he did. Once again it does not seem to me possible to impugn the exercise of his discretion in that regard. Conclusion

[34]Mr Brindle accepted that the costs order should be varied so as to order his clients to pay for the exercise of producing the documents. He also accepted that to avoid any misunderstanding some minor re-drafting of the order might be appropriate so as to place an end-date in relation to the tax documents, consistent with the term relating to the audit documents, and so as to clarify the point that what is in reality covered by the order is "documents" and not "files", something that Mr Knowles readily conceded had been understood to be the position by his client. Apart from varying the order in the above minor respects, in my view both appeals should be dismissed.

LORD JUSTICE CLARKE:

[35]I have read the draft judgments of Waller and Rix LJJ and I agree with both of them.

LORD JUSTICE RIX:

[36]I agree with Lord Justice Waller's judgment, which I have had the opportunity of reading in draft. In deference to Mr Knowles' submissions I would merely add the following.

[37]Mr Knowles drew the Court's attention to various pre-action protocols, some complete and approved, one still in a draft stage.

[38]Thus in the Pre-Action Protocol for Personal Injury Claims ( Civil Procedure, Vol 1, Autumn 2000, at C2-001ff) pre-action disclosure is dealt with at a relatively early stage, viz when the proposed defendant answers the claimant's letter of claim, at which time he should enclose with his letter of reply "documents in his possession which are material to the issues between the parties, and which would be likely to be ordered to be disclosed by the court, either on an application for pre-action disclosure, or on disclosure during proceedings" (para 3.10). Consistently with that approach, Annex B lists specimen but non-exhaustive lists of documents likely to be material in different types of claim, and the letter of claim is invited to indicate which classes of documents are considered relevant for early disclosure (para 3.11; see also para 2.10).

[39]In the Pre-Action Protocol for the Construction and Engineering Disputes ( Civil Procedure at C5-001ff), on the other hand, pre-action disclosure is only reached at para 5.5(ii), after letter of claim, response and pre-action meeting. Mr Knowles submitted that a claim for professional negligence was much more akin to a construction or engineering dispute than a personal injury dispute.

[40]The Pre-Action Protocol for the Resolution of Clinical Disputes ( Civil Procedure at C3-001) indicates yet a third approach. There paras 3.7-3.13, under the heading "Obtaining the Health Records", deal with early disclosure of medical records even before one reaches the letter of claim (at paras 3.14ff). For these purposes parties are recommended to make use of Annex B, which lists a "Protocol for Obtaining Hospital Medical Records". Para 3.7 says that a request for records by a patient should be "as specific as possible".

[41]A protocol for professional negligence claims has yet to be agreed and approved. However, Mr Knowles showed the Court a draft "Professional Negligence Pre-Action Protocol". Being a mere draft, it lacks any status. Mr Knowles was nevertheless anxious to demonstrate its provisions. It provides for a preliminary notice of a grievance, a detailed letter of claim, a letter of acknowledgment, and then a period of three months for "Investigations", followed by a letter of response. At the investigations stage the draft provides (at B4.3) that "The parties should supply promptly, at this stage and throughout the pre-action period, whatever information or documentation is reasonably requested" and there is a reference to "Guidance Note C5". Paragraph C5.1 provides:

"Paragraph B4.3 is intended to encourage the early exchange of relevant information, so that issues in the dispute can be clarified or resolved. It should not be used as a "fishing expedition" by either party. No party is obliged under paragraph B4.3 to disclose any document which a Court could not order them to disclose in the pre-action period."

[42]These materials all indicate that in their respective spheres the concept of pre-action disclosure, at any rate to some degree, is regarded as part of the normal investigation of a claim prior to the commencement of litigation. The differences no doubt reflect the different categories of claim. Clinical disputes are concerned with the paradigm case of medical records, without which it is difficult to make any progress. Construction and engineering disputes, on the other hand, are by their nature potentially awash with documentation, so that it is not surprising to find that the question of disclosure is met with at a rather later stage in the relevant protocol. Professional negligence disputes may come in many different shapes, and I would not agree with Mr Knowles' submission that they necessarily lie closer to the construction and engineering field than anything else. In any event, in the absence of an approved protocol for such disputes, the guiding principle of practice, outside CPR 31.16 itself, is to be found in the Practice Direction – Protocols ( Civil Procedure at C1-001ff), para 4 of which reads as follows:

"In cases not covered by any approved protocol, the court will expect the parties, in accordance with the overriding objective and the matters referred to in CPR 1.1(2)(a), (b) and (c), to act reasonably in exchanging information and documents relevant to the claim and generally in trying to avoid the necessity for the start of proceedings."

In short, it seems to me that there is no obvious help for Mr Knowles' submissions to be derived from a consideration of such protocols.

[43]The question on this appeal ultimately turns on whether the Judge's finding of jurisdiction and the exercise of his discretion under CPR 31.16 can be faulted. For the reasons given by Waller LJ, I agree that it can not. For these purposes I also agree that there was sufficient identification of the likely issues in the dispute (see section 33(2) of the Supreme Court Act 1981) and of the documents or classes of documents for which disclosure was requested and ordered (see CPR 31.16(4)(a)) to support the order made. The fact that the submissions in this Court have given rise to a certain degree of further fine-tuning of the terms of the order is neither here nor there. I agree that it would be inappropriate for this Court to lay down guidelines in this case or at this stage in the life of the new rule. In any event, it is the function of the relevant protocol, when it has matured into an approved form, to give guidance, within the statute and the rule, as to the manner in which the pre-action exchange of information and documents can best be accomplished in this particular sphere of dispute.

[44]I also agree with what Waller LJ has said about the matter of costs.

ORDER

As minuted by Counsel. (Order does not form part of approved Judgment) ORDER Upon the Applicant making an application pursuant to Section 33 of the Supreme Court Act 1981 and CPR r31.16 by notice dated 1 March 2000. AND UPON HEARING Leading Counsel for the Applicant and the Respondent. IT IS ORDERED a) All files relating to the audit of Siam Selective Growth Trust ("the Fund") for the accounting periods ending 31 March 1993, 1994 and 1995; b) Files, notes, memoranda, correspondence and other documents relating to KPMG acting as the Fund's tax agent from 1 April 1992; And which are relevant to the following:- i) Compliance with clause 5.1.2.1 of the Management Agreement between the fund and the intended Claimant; ii) Compliance with S.842 of the Investment and Corporation Taxes Act 1988; iii) The holding by the company known as Shinawatra Computers and Communications Public Company Limited of shares in the company known as Advanced Information Systems. Dated: 9 June 2000