Harre CJ
1
IN THE GRAND COURT OF THE CAYMAN ISLANDS
HOLDEN AT GEORGE TOWN， GRAND CAYMAN
CAUSE #389 OF 1992
BETWEEN：
(1) INTERNATIONAL CREDIT AND INVESTMENT
COMPANY (OVERSEAS) LTD
(In Liquidation)
(2) FINANCE AND INVESTMENT
INTERNATIONAL LIMITED
Plaintiffs
(1) SHAIKH KAMAL ADHAM
(2) FAISAL SAUD AL FULAIJ
(3) GAITH RASHAD PHARAOH
(4) PHARAOH HOLDINGS LIMITED
(5) LHASA INVESTMENTS LIMITED
(7) CONCORDE INTERNATIONAL TRADING SA
AND
Defendants
For the plaintiffs：
Charles Purle QC and Ewan McQuater of Counsel
For the defendants：
Richard McCombe QC， Ramon Alberga QC and
Anthony Trace of counsel instructed by
Myers & Alberga
Harre C. re
RULING
Build plime reliefs sought by the Fifth and Seventh defendants
in their art in， dated 14th of July is an order that the parties be at
liberty to e expert evidence at trial. It was agreed that the
experts stice， a forensic document examiner， a chartered accountant
and an ex banking regulation matters. The point at issue is
whether t ports should be simultaneously exchanged， as is the
normal pr or in sequence.
I will refer at some length to note 38/35/2 in the English Supreme Court Practice because it sets out the principles. It is there said that the objects intended to be achieved by the rules include avoiding surprise at the trial, securing where possible, agreed expert reports, identifying matters of expert opinion which are really in controversy between the parties and enabling the experts themselves to prepare their evidence more thoroughly and helpfully.
Machine for the pretrial disclosure of expert evidence is intended to operate on the basis of fairness and mutuality as between the parties. Neither party should be able or should be allowed to obtain disclosure of the party's expert evidence before the trial without disclosing his own expert evidence to that party being precluded from calling such expert evidence at the trial. It will be seen that such fairness and mutuality the machinery is intended to provide so as to provide for the simultaneous exchange of experts' reports subject to variations subject to special circumstances. It will be to maintain fairness and mutuality between the parties, which the terms of the rules do not limit the powers of the court to make orders that it can make for the disclosure of experts.
The normal rule of practice is to provide for the simultaneous exchange of experts' reports subject to variations subject to special circumstances. It will be to maintain fairness and mutuality between the parties, which the terms of the rules do not limit the powers of the court to make orders that it can make for the disclosure of experts.
Obviously, the defendant cannot instruct a "forensic document examiner" until they know the forensic document or documents the plaintiffs propose to rely on.
3 to have examined by their own expert. Equally obviously, if reports are to be simultaneously exchanged, each expert will need enough time to examine the documents. That is a physical problem and I have no knowledge of its extent. If the examination has to be sequential the presentation of the reports may have to be sequential also. What the court requires is an indication from the plaintiffs, in the context of the further submissions as to timing of the reports which will follow this ruling in any event as to how this may be addressed.
The expert accountant relating to the other two experts are different. The expert on banking regulation will have to give their views on the allegations if the Financial Statement of ICIC had not been falsified. The accounting licence would have been withdrawn, it would have ceased to be in force and would not have suffered the loss and damage claimed. The accounting experts will give their views on what the state of accounts of ICIC would have been if they had been properly maintained.
I have given here to look at the function and relationship of pleadings and evidence. I have already considered that the amendments sufficiently perform their function. The particulars are already very lengthy and the list of the first plaintiff's agents is not only long but indicative of the way in which the liquidators in this regard, they must be at some advantage that the fifth and seventh defendants.
These experts will have to address themselves to particulars.
Mr. Trace's argument was indeed about particulars, but in my view well based nevertheless.
It is not enough, in my view, for the plaintiff to say in this context that the gist of the case is plain from what the defendants already have. A balance of fairness can, in my judgment, best be achieved by having sequential reports from these two experts, with questions of timing, as agreed last week, to be the subject of further submissions.