“(1) What did the United Kingdom authorities know about BCCI at all relevant times? (2) Should they have known more? (3) What action did the United Kingdom authorities take in relation to BCCI at all relevant times? (4) Should they have acted differently? We refer you to page iii of the published Report. 3. One of the main issues in the litigation between our clients and the Bank of England concerns the state of mind of the Bank in relation to its statutory duties and BCCI. We enclose a copy of the Particulars of Claim for your attention. The pleading in this amended form was produced at the suggestion of the House of Lords, which subsequently gave permission for the amendments to be made (see the Three Rivers case[2001] 2 All ER 513 , per Lord Steyn at p 516, para 3 and p 517, para 8). 4. The documentation we have requested appears plainly to go to the question of the Bank’s knowledge and/or its action or inaction. The particular documents and communications we have enumerated were considered by Lord Bingham to be sufficiently significant to deserve mention in connection with the questions he was considering. As regards the Bingham Inquiry Archive material which we request (witness statements and transcripts of evidence), Lord Bingham must have considered such evidence germane to the above issues.”
“To enquire into the supervision of BCCI under the Banking Acts; to consider whether the action taken by all the UK authorities was appropriate and timely; and to make recommendations.”
“To enquire into the supervision of BCCI under the Banking Acts; to consider whether the action taken by all the U.K. authorities was appropriate and timely; and to make recommendations.”
“It cannot be said that it is not a realistically sustainable submission or that it has no reasonable prospect of success. The defendants should be free to pursue the point and in order to do so need to see the documents which show what the Helphire system paid to the repairers and engineers, as well as what they claimed in the claimant’s name from the defendants in this respect. Such documents, if the defendants’ argument is good, are likely to support the case of the applicator, adversely affect that of the claimant, and in my judgment such disclosure is necessary in order to dispose fairly of the claims. If a defendant’s point is sound, then fairness can only be achieved by knowing the relevant figures and the nature of the arrangements.” 11. A little later he said: “Either a claimant is entitled to what it seeks or it is not, and a much more reliable judgment about this is likely to be reached by a court in possession of the facts than one operating through a mist of inference or speculation.” 12. Mr Milligan Q.C., on behalf of the appellant, submits that the judge was wrong. Neither limb ofCPR 31.17 were satisfied because the documents were irrelevant. Under the scheme the claimant owes Helphire the amounts claimed so her loss is quantified as her indebtedness to them for the services they provide. What Helphire pay to provide these services is irrelevant. The measure of Mrs Clark’s loss is not what Helphire pays, it is the market value of the repair to the car. Despite the resources at their disposal, the defendants’ insurers have produced no evidence that his value is less than the amount invoiced to Mrs Clark and claimed in these proceedings. The arrangement under which Helphire paid 90 per cent of the value of the invoice did not discharge Mrs Clark’s debt to the repairer. It was, as the agreement shows, a straightforward factoring agreement under which one Helphire company bought the debt due by Mrs Clark to the repairer. Mr Milligan also showed us passages in Dimond v Lovell which formed the basis for a submission that the defendants’ contention is based upon a misunderstanding of what the majority said in that case about the damages recoverable for the cost of car hire. 13. These are interesting arguments. But the threshold question we have to answer is whether the court should proceed to resolve the issues which they raise for the purposes of determining whether the documents in question are relevant. I do not think that it should. The court ought not to determine disputes of substance in order to decide whether documents are or are not relevant. Here the issue to which the discovery relates is clearly raised in the amended defence and no attempt has been or could be made to strike the pleading out. It will be for the judge at trial to decide the issue based on the evidence (some of which will come from the discovery ordered) and the law including what the House of Lords did or did not say in Dimond v Lovell and the other submissions made to us by Mr Milligan. 14. I think the judge was right not to enter into the merits of the debate in any detail for the purpose of making the discovery decision. He directed himself as to whatCPR 31.17 required before a non-party order for discovery could be made. The documents sought did, in my judgment, satisfy both limbs of the test. 15. The judge nevertheless had a discretion as to whether to make the orders. I see no basis for saying he exercised it incorrectly. As this is or may be a test case, it is important that the court should have as full a picture as possible as to how the Helphire schemes work. In the earlier test cases the judge regretted that he did not have the full picture because certain documents were not before the court. Furthermore, the third parties affected by the judge’s order are either Helphire subsidiaries or participants in the schemes in which they obviously have a commercial interest.”