NM Rural Enterprises Pty Ltd v Rimanui Farms Limited - [2010] NSWSC 921

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CITATION: NM Rural Enterprises Pty Ltd v Rimanui Farms Limited [2010] NSWSC 921

HEARING DATE(S): 17 August 2010

JUDGMENT DATE :
18 August 2010

JUDGMENT OF: Harrison J

DECISION: The report of Mr McDougall dated 2 November 2005 should be admitted into evidence.

CATCHWORDS: PRACTICE & PROCEDURE – where defendant objected to tender of expert report by plaintiff due to non-compliance with the expert witness code of conduct – where report in largely identical terms to another expert report prepared in collaboration with the first expert – report admissible as the genuine opinion of the expert

LEGISLATION CITED: Supreme Court Rules

CATEGORY: Procedural and other rulings

CASES CITED: ASIC v Rich [2005] NSWSC 149
Cooke v Commissioner of Taxation (Cth) [2002] FCA 1315; (2002) 51 ATR 223
Idoport Pty Ltd v National Australia Bank Limited [2001] NSWSC 995
Investmentsource v Knox St Apartments [2007] NSWSC 1128
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2000-2001) 52 NSWLR 705
Paino v Paino [2005] NSWSC 1313
Ray Fitzpatrick Pty Ltd v Minister for Planning [2007] NSWLEC 791

PARTIES: NM Rural Enterprises Pty Ltd (Plaintiff)
Rimanui Farms Limited (First Defendant)
Gil Gil Farming Pty Ltd (Second Defendant)
Lloyds Syndicate No 1243 (Third Defendant)

FILE NUMBER(S): SC 2003/93179

COUNSEL: J E Maconachie QC with S B Docker and M W E Maconachie
T J Hancock with J P Donohoe and A T Martin (First defendant)
B Loukas (Second Defendant)
G T W Miller QC with D A Lloyd (Third Defendant)

SOLICITORS: TurksLegal (Plaintiff)
Webb and Boland (First Defendant)
Doyle Wilson (Second Defendant)
Riley Gray-Spencer (Third Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

18 August 2010

2003/93179 NM Rural Enterprises Pty Ltd v Rimanui Farms Limited & Ors
JUDGMENT

1 HIS HONOUR: The plaintiff tenders a report dated 2 November 2005 from an expert agronomist Don McDougall. The first defendant objects to the tender of the report because it does not comply with the then current version of the Expert Witness Code of Conduct: see Schedule K, Part 36 Rule 13C(1) and Part 39 Rule 2(1) Supreme Court Rules. For presently relevant purposes the Code contained the following:

The form of expert reports

(a) the person's qualifications as an expert, and

(b) the facts, matters and assumptions on which the opinions in the report are based (a letter of instructions may be annexed), and

(c) reasons for each opinion expressed, and

(d) if applicable – that a particular question or issue falls outside his or her field of expertise, and

(e) any literature or other materials utilised in support of the opinions, and

2 The first defendant contended that Mr McDougall's report did not comply with some of these requirements. This is referred to in more detail below. The plaintiff submitted that the report complied with the Code.

Background

3 On 12 August 2010 the plaintiff tendered a report by Amanda Woollams, which became Exhibit F in the proceedings. The plaintiff later tendered another version of that report, containing a series of appendices not attached to the first exhibit. The second report became Exhibit J in the proceedings. Ms Woollams was at the time she prepared her report employed by an organisation called Agricultural Loss Management Group. Mr McDougall was one of the principals in that organisation and a director of, and shareholder in, a related corporate entity. Ms Woollams prepared her report, not for the original purpose for use in legal proceedings, or even as the expression of an expert opinion, but for submission to the plaintiff which was a client seeking advice about the possible causes of damage to its crops. In due course the plaintiff commenced these proceedings claiming damages from the defendants alleging that the crop damage was caused by the drift of glyphosate from spraying operations conducted upwind from the plaintiff's property "Telleraga" by or on behalf of the defendants on the property "Boonaldoon".

4 Ms Woollams' report was admitted without objection. In particular, no issue was taken by any of the defendants that she had failed to comply with the Expert Witness Code of Conduct.

5 Ms Woollams was cross-examined upon her report by the first defendant on 12 August 2010. Part of that cross-examination included the following questions and answers:

"Q. If one goes through and makes a list of those and compares them to what you have in your affidavit, you will find that some but not all of the appendices to your report are annexed to your affidavit?
A. Yes.

Q. Now, you produced this report after conducting a very extensive investigation into the circumstances surrounding the damage to these fields on Telleraga; is that right?
A. Yes.

Q. And after receiving various expert reports from the gentlemen we have identified - you have previously identified Mr Sommervaille, Mr Combellack and Mr Chiswell?
A. Yes.

Q. In your report you state, if I can term it this way, your findings, as a result of all of your investigations?
A. Yes.

Q. Including the assistance that you received from the experts?
A. Yes.

Q. You expressed numerous conclusions throughout that report; correct?
A. Yes.

6 Ms Woollams was not cross-examined about the role, if any, played by Mr McDougall in the preparation of this report. The plaintiff relies upon that fact for its purposes in the present application. This is also referred to below.

7 In support of its opposition to the tender of Mr McDougall's report the first defendant prepared a detailed comparison between various portions of Ms Woollams' report and what are said to be similar or identical portions of Mr McDougall's report. That schedule became Exhibit 1D6 in the proceedings. Even the most cursory examination of the detailed comparison performed in that schedule makes it plain that Mr McDougall's report contains substantial and extensive use of material in Ms Woollams' report. There are some differences. For example, Ms Woollams' report expresses opinions using the personal pronoun "we". Mr McDougall, by way of contrast, expresses opinions using the personal pronoun "I". Other variations are apparent as well. For example, paragraph 3.16 of Ms Woollams' report is in the following terms:

sic

8 By way of comparison, paragraph 4.12 of Mr McDougall's report was as follows:

"4.12 The majority of the sorghum in West corner was showing extensive signs of chlorosis. The symptoms varied from worst in higher lying areas to least in areas where the sorghum was low lying. I have been instructed to assume that at the time of the incident the low lying areas were flooded. This would explain the pattern of damage as the flood water would have protected any submerged plant material."

9 The form of both reports is substantially the same. Photographs, diagrams, charts and other material are reproduced effectively identically in each report. No attempt has been made by Mr McDougall to use or to adopt anything said by Ms Woollams in a way that might have disguised her words as the original source of the opinions expressed by him. Nor has any suggestion been made by the first defendant that Mr McDougall has improperly attempted to pass off the opinions of Ms Woollams as his own. Indeed, the similarity of the two reports patently forecloses upon any such suggestion.

10 The first defendant emphasises not so much the similarities between the reports as the differences. That emphasis relies upon matters such as the following. Paragraphs 4.8 to 4.18 of Ms Woollams' report are as follows:

"4.8 Various recognised industry experts were also engaged to asses the damage seen in the 2001 cotton and sorghum crops on Telleraga Station.

4.9 Mr Andrew Somervaille, of Jubilee Consulting, was employed with Monsanto (the leading manufacturers of glyphosate) for many years in research and development and was experienced with the activity of glyphosate. Mr Somervaille was also engaged to consider the state of the cotton on Telleraga Station and the health of surrounding vegetation between Boonaldoon and Telleraga Station.

Appendix D

4.12 With respect to cotton seen in field 18 Mr Somervaille concluded …

4.13 Mr Somervaille also assessed the condition of sorghum in West corner. He found the following: …

4.14 Mr Harry Combellack of Spray Smart Enterprises was also engaged to consider the symptoms seen in the cotton and sorghum and to provide an opinion as to the likely cause. A copy of the report prepared by Mr Combellack is attached as Appendix E .

11 Mr McDougall's report contains no equivalent paragraphs. There are other examples to which the first defendant refers. For example, paragraph 7 in Ms Woollams' report is as follows:

" 7.0 ACTIVE INGREDIENT BACKGROUND

12 By way of comparison, paragraph 8.0 of Mr McDougall's report was in the following terms:

"8.0 ACTIVE INGREDIENT BACKGROUND

13 As I have already indicated, there are many more examples of this trend highlighted in Exhibit 1D6. I have had regard to all of them, and to the first defendant's submissions about them, even though, for obvious reasons, the first defendant's entire comparative analysis is not recorded in these reasons. I note in passing, however, that in addition to Mr Somervaille and Mr Combellack, Ms Woollams referred to a report and conclusions of a Mr Chiswell. The first defendant made the same submissions concerning Mr McDougall's failure to refer to him as it made with respect to the other two experts.

14 In summary, the first defendant contended that Mr McDougall had not disclosed in his report all of the facts, matters and assumptions on which the opinions in his report are based. It also submitted that he had failed to specify other materials utilised in support of his opinions to the extent that he appears to have incorporated, without acknowledgement or reference, so much of Ms Woollams' report as contained, and as appears to be based upon, the reports and opinions of Messrs Combellack, Somervaille and Chiswell. The first defendant contended that because of the similarity between the opinions expressed by Ms Woollams and Mr McDougall it is apparent that Mr McDougall has utilised the opinions of these experts in the same way as Ms Woollams but with the significant difference that he has failed to refer to them. The first defendant contended that these were failures to comply with the Expert Witness Code of Conduct and that they were fatal to the plaintiff's attempt to tender Mr McDougall's report.

15 The plaintiff called Mr McDougall over the first defendant's objection to give evidence on the contested application to tender his report. Mr McDougall confirmed what was probably already apparent, that Ms Woollams was engaged by the plaintiff as an employee of Agricultural Loss Management Group to investigate and report upon crop damage on the plaintiff's property. He said that he sent Ms Woollams to carry out investigations and that he spoke to her each day and gave guidance to her by phone throughout the week or so that she was there by herself. He subsequently visited the plaintiff's property "Telleraga" on 13 and 14 December 2000 and inspected both it and the first defendant's property "Boonaldoon", and the intersecting stock route, with Ms Woollams at that time. Mr McDougall said that he discussed what he observed with Ms Woollams. Mr McDougall said that he later went to "Boonaldoon" with Ms Woollams and Mr Ward on 21 and 22 December 2000 where he made observations, discussed the possible causes and the extent of crop damage on "Telleraga", and gathered evidence to establish what had happened. Mr McDougall confirmed that he was a senior consultant with Agricultural Loss Management Group and he oversaw or supervised what Ms Woollams was to do. Mr McDougall also said that he discussed the implications of the information that was gathered and that when he received a request from the plaintiff to produce a report, he sat down with Ms Woollams to work out what should go into it. In due course, following the preparation of several drafts produced in collaboration with him, Ms Woollams produced her report in the form now contained in Exhibit J. Mr McDougall said that he saw the report in its final form and in effect authorised Ms Woollams to sign off on the report on behalf of Agricultural Loss Management Group. He said that he did not sign it himself at that time because he wished to promote Ms Woollams and Agricultural Loss Management Group to the plaintiff. The clear implication is that, but for that reason, Mr McDougall would have provided the 2001 report to the plaintiff as his report.

16 It is uncontroversial in these proceedings that the defendants have been in possession of Ms Woollams' report for some time.

Discussion

17 The first defendant referred me to authority. In ASIC v Rich [2005] NSWSC 149 at [256] Austin J said this:

"[256] Although the law is not fully settled, it appears that the Act and the case law surrounding it, read in conjunction with the Code, give rise to the following considerations going to the admissibility or discretionary exclusion of expert evidence, pertinently to the present case:

(1) that the evidence, if not admissible as evidence of fact, must be evidence expressing the expert's opinion;

(2) that the person put forward as an expert must possess specialised knowledge based on training, study or experience;

(3) that the expert's opinion must be wholly or substantially based on his or her specialised knowledge;

(4) that the expert's report must distinguish between the opinions and the facts on which they are based;

(5) that the expert must set out his or her reasoning for each opinion expressed;

(6) that, where it is pertinent to do so, the expert's report must set out the reasoning by which certain information was considered and rejected or discounted for the purposes of the report;

(7) that the expert's opinion must not be wholly or substantially based on facts that can be proved only by inadmissible evidence;

(8) that the expert's opinion and reasoning must be his or her own, and not simply the adoption of the work of someone else; and

18 It will be apparent that the first defendant relied in particular upon subparagraphs (5) and (8) of the paragraph just quoted.

19 At [329] his Honour also said the following:

"6.8 Expert's delegation and reliance on others

20 In the earlier decision of Idoport Pty Ltd v National Australia Bank Limited [2001] NSWSC 995, Einstein J at [7] summarised a number of the authorities in the light of the (then) recent decision of the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2000-2001) 52 NSWLR 705 as follows:

"[7] Makita serves to summarise a number of authorities which, albeit often overlapping, generally support the following particular propositions:

(1) the duty of expert witnesses is to furnish the court with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the court to form its own independent judgment by the application of these criteria to the facts proved in evidence;

(2) scientific opinion evidence, if intelligible, convincing and tested, becomes a factor for consideration along with the whole of the other evidence in the case;

(3) the bare ipse dixit of a scientist/expert, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised - [the parties having " invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert "];

(4) the importance that the expert's reports identify the criteria by reference to which the court can test the quality of the expert's opinions;

(5) that examining the substance of an opinion cannot be done without the court knowing what are the essential integers underlying the opinion;

(6) the importance of the court being placed in a position to test the validity of the process by which an opinion has been formed so as to be in a position to adjudicate upon the value and cogency of the opinion evidence;

(7) the hallmarks of unreliable science and the not-so-qualified expert, being the inability to articulate the principal tenets that need to be understood, or to describe in ordinary language, the methods used and the reasons that point to a particular conclusion;

(8) the crucial significance of the expert revealing the whole of the manner in which the appropriate information utilised by the expert was dealt with in arriving at the formation of the expert's conclusions;

(9) that expert opinion evidence is to be judged like any other evidence: it must be comprehensible and reach conclusions that are rationally based; the process of inference that leads to the conclusions must be stated or revealed in a way that enables the conclusions to be tested and a judgment made about the reliability of them; and

21 His Honour also mentioned at [8] the now well-known remarks of Heydon JA at [85] in Makita to which it is unnecessary in more detail to refer.

22 I was also referred to the decision of Jagot J in Ray Fitzpatrick Pty Ltd v Minister for Planning [2007] NSWLEC 791 at [29] as follows:

lnvestmentsource

23 Finally, I was referred to the decision of McDougall J in Investmentsource v Knox St Apartments [2007] NSWSC 1128 at [50], where his Honour expressed his conclusions as follows:

"[50] I have come to the conclusion that I should not "otherwise order" so as to admit into evidence so much of the Colliers material as expresses Mr Williams' opinions. My reasons may be expressed briefly:

(1) Mr Williams did not prepare his report with a conscious appreciation of the obligations imposed by Schedule K (which was applicable at the time it was prepared) or Schedule 7 (which is applicable now).

(2) There is a real difference between the role of an expert retained to advise a client and the role of an expert engaged to give evidence. The former owes his or her primary obligation to the client; the latter owes his or her primary obligation to the Court. It cannot be assumed that those obligations are identical, or that in any given case performance of them would lead to the same outcome in terms of opinion.

(3) For the reasons given by Einstein J in Cassegrain and Campbell J in United Rural Enterprises , there is a real risk that an expert who has not prepared a report under the discipline of the applicable schedule will form an opinion from which, thereafter, he or she would find it difficult to retreat, even if circumstances arise that might raise this as a possibility.

24 The first defendant contended that the present circumstances went beyond a permissible delegation by Mr McDougall to Ms Woollams to prepare a report which in due course, with amendments of the type I have referred to, Mr McDougall adopted as his own. Implicit in this criticism is the contention that Mr McDougall did not apply his mind either to the analysis or to the reasoning process developed by Ms Woollams so that when his report was finalised it could be said that the reasoning and conclusions that Mr McDougall's report contained had been adopted as his own reasoning and conclusions. In such a case, so the first defendant emphasised, Mr McDougall could not claim to be the author of the report that is the subject of the present debate.

25 In contrast, the plaintiff submitted that Ms Woollams prepared her report only with the assistance, and directly under the supervision, of Mr McDougall. The document that went out above her signature in 2001 was, according to the plaintiff, in truth Mr McDougall's own report. Ms Woollams signed it for reasons explained by Mr McDougall in evidence before me. In particular, the plaintiff emphasised that when she was cross-examined on behalf of the first defendant, in the passage that is extracted above, it was never put to Ms Woollams that Mr McDougall had made any contribution to her report at all. The plaintiff complained that it was at least unfair for the first defendant to refrain from giving Ms Woollams the opportunity to confront the proposition that Mr McDougall was the real author of the report if the first defendant then knew that it would in due course oppose the tender of Mr McDougall's report because it was no more and no less than an unthinking adoption and representation by Mr McDougall of Ms Woollams' own work. The plaintiff contended that it was unfair for the first defendant to promote Ms Woollams' answers given in cross-examination without also seeking to have her comment upon the extent of any contribution to her report that Mr McDougall may have made. The plaintiff complained that the first defendant was approbating Ms Woollams' evidence as the last word on the issue whilst now seeking to reprobate the evidence of Mr McDougall on the same topic. The proposition implicit in the plaintiff's submission is that the first defendant steered clear of providing Ms Woollams with an opportunity to comment upon Mr McDougall's contribution to the report either because it feared, or knew, that his role in the preparation of her report would be revealed.

26 The first defendant complains that such a submission effectively reverses the onus of proof. However, so I am informed, the first defendant had for some time foreshadowed that it objected to the tender of Mr McDougall's report but had never specified the basis upon which it did so, despite requests from the plaintiff that it indicate the grounds for the objection. The burden of the plaintiff's submission is that the first defendant well knew, but had not revealed, the grounds upon which it would object to Mr McDougall's report when it cross-examined Ms Woollams and that it cannot rely upon her answers without having given her an opportunity to comment upon Mr McDougall's role.

27 It is in my opinion important to bear in mind that the wisdom promoted by cases such as Makita is based, among other things, upon the need to preserve the purity of the evidentiary process. This has at least two relevant aspects. First, a defendant should not be prejudiced by an inability to cross-examine the author of a report in a way that meaningfully exposes the validity of his or her opinions. Secondly, the Court should not be required to form a view, or to decide an issue, upon the basis of an opinion that does not withstand objective scrutiny. In the present case, in line with these sentiments, the first defendant submits that Mr McDougall's opinion is invalid as a work or body of expert evidence on the one hand and cannot reasonably or adequately be tested by it on the other hand.

28 I disagree. The reports of Ms Woollams and Mr McDougall have been in possession of the defendants for some time. It is clear beyond argument – indeed it is not contested – that Mr McDougall's report is little short of a wholesale adoption of Ms Woollams' wording. In normal circumstances that would disqualify it in accordance with the principles set out in the authorities to which I have been referred. However, the short evidence of Mr McDougall makes clear that Ms Woollams' report was an opinion for which he was at least jointly responsible. The transparent adoption by Mr McDougall of Ms Woollams' report to the client as his expert opinion exposed it immediately to the type of scrutiny to which it has now been exposed. For my part I do not understand why Mr McDougall's report omits reference to the opinions of Messrs Combellack, Somervaille and Chiswell that are referred to by Ms Woollams. However, those are matters which in my opinion the first defendant can explore in cross-examination of Mr McDougall. Significantly, the considerable efforts of the first defendant in producing Exhibit 1D6 mean that a convenient and useful framework for an effective cross-examination of Mr McDougall already exists, and the potential areas of controversy have been eloquently identified. In the particular circumstances of this case I consider that Mr McDougall's decision to omit reference to those opinions is likely to draw comment from the defendants but that the omission, and any comments upon it, are properly matters going to the question of weight rather than admissibility.

29 Furthermore, the requirement that the opinion is wholly or substantially based on specialised knowledge can have significant implications where the opinion is expressed jointly by more than one person. Although that is not the position in the present case, the fact that the two reports are in largely identical terms gives rise to similar considerations. In Cooke v Commissioner of Taxation (Cth) [2002] FCA 1315; (2002) 51 ATR 223, Stone J considered a report prepared by two people in circumstances where only one gave evidence. It was not possible to tell from the report which parts of it, if any, were prepared solely by the person who gave evidence. The other joint author was not called. Stone J said this:

Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd

30 The same approach was followed by Barrett J in Paino v Paino [2005] NSWSC 1313. The issue relevantly concerned the admissibility of an expert report dealing with the valuation of several parcels of land on Filicudi, an island off the coast of Italy. His Honour found that one of the expert valuers who was called could not establish that he was solely responsible for any part of the particular report. His Honour therefore concluded at [15] that he could not be satisfied that any part of the report was based wholly, or even substantially, on the knowledge of the expert witness who testified.

31 In this case I am satisfied that Mr McDougall is the person responsible for all of the opinions expressed in the report prepared by Ms Woollams. He has given evidence to that effect. He has explained why Ms Woollams signed the report. I consider that the first defendant consciously refrained, for its own legitimate forensic purposes, from asking Ms Woollams whether or not Mr McDougall contributed to her report, or what that contribution was if he did. I therefore permitted Mr McDougall to give evidence of his role, in accordance with the approach endorsed by Stone J and Barrett J in the cases to which I have referred. It does not appear to me, in the light of the evidence, that any collaboration between Mr McDougall and Ms Woollams has resulted in production of a report that is not, or reports that are not, identifiable as the genuine opinions of Mr McDougall, or that any such collaboration has masked or disguised the extent to which they are not.

Conclusion

32 In my opinion the report of Mr McDougall dated 2 November 2005 should be admitted into evidence.

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Citations

NM Rural Enterprises Pty Ltd v Rimanui Farms Limited [2010] NSWSC 921

Most Recent Citation

Wenkart v Blacktown City Council [2024] NSWLEC 117

Cases Citing This Decision

4

NM Rural Enterprises Pty Ltd v Rimanui Farms Limited [2010] NSWSC 968

NM Rural Enterprises Pty Ltd v Rimanui Farms Limited [2010] NSWSC 945

AYU v The Children's Guardian [2021] NSWCATAD 48

Cases Cited

7

Statutory Material Cited

1

ASIC v Rich [2005] NSWSC 149

Idoport Pty Limited v National Australia Bank Limited and 8 Ors; Idoport Pty Limited and Market Holdings Pty Limited v Donald Robert Argus; Idoport Pty Limited "JMG" v National Australia Bank Limited and.. [2001] NSWSC 995

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305

CITATION:	NM Rural Enterprises Pty Ltd v Rimanui Farms Limited [2010] NSWSC 921
HEARING DATE(S):	17 August 2010
JUDGMENT DATE :	18 August 2010
JUDGMENT OF:	Harrison J
DECISION:	The report of Mr McDougall dated 2 November 2005 should be admitted into evidence.
CATCHWORDS:	PRACTICE & PROCEDURE – where defendant objected to tender of expert report by plaintiff due to non-compliance with the expert witness code of conduct – where report in largely identical terms to another expert report prepared in collaboration with the first expert – report admissible as the genuine opinion of the expert
LEGISLATION CITED:	Supreme Court Rules
CATEGORY:	Procedural and other rulings
CASES CITED:	ASIC v Rich [2005] NSWSC 149 Cooke v Commissioner of Taxation (Cth) [2002] FCA 1315; (2002) 51 ATR 223 Idoport Pty Ltd v National Australia Bank Limited [2001] NSWSC 995 Investmentsource v Knox St Apartments [2007] NSWSC 1128 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2000-2001) 52 NSWLR 705 Paino v Paino [2005] NSWSC 1313 Ray Fitzpatrick Pty Ltd v Minister for Planning [2007] NSWLEC 791
PARTIES:	NM Rural Enterprises Pty Ltd (Plaintiff) Rimanui Farms Limited (First Defendant) Gil Gil Farming Pty Ltd (Second Defendant) Lloyds Syndicate No 1243 (Third Defendant)
FILE NUMBER(S):	SC 2003/93179
COUNSEL:	J E Maconachie QC with S B Docker and M W E Maconachie T J Hancock with J P Donohoe and A T Martin (First defendant) B Loukas (Second Defendant) G T W Miller QC with D A Lloyd (Third Defendant)
SOLICITORS:	TurksLegal (Plaintiff) Webb and Boland (First Defendant) Doyle Wilson (Second Defendant) Riley Gray-Spencer (Third Defendant)