What are the statutory provisions and criteria for commencing a secondary market civil liability claim?

Liability for secondary market disclosure

Documents released by responsible issuer

138.3 (1) Where a responsible issuer or a person or company with actual, implied or apparent authority to act on behalf of a responsible issuer releases a document that contains a misrepresentation, a person or company who acquires or disposes of the issuer’s security during the period between the time when the document was released and the time when the misrepresentation contained in the document was publicly corrected has, without regard to whether the person or company relied on the misrepresentation, a right of action for damages against,

(a) the responsible issuer;

(b) each director of the responsible issuer at the time the document was released;

(c) each officer of the responsible issuer who authorized, permitted or acquiesced in the release of the document;

(d) each influential person, and each director and officer of an influential person, who knowingly influenced,

(i) the responsible issuer or any person or company acting on behalf of the responsible issuer to release the document, or

(ii) a director or officer of the responsible issuer to authorize, permit or acquiesce in the release of the document; and

(e) each expert where,

(i) the misrepresentation is also contained in a report, statement or opinion made by the expert,

(ii) the document includes, summarizes or quotes from the report, statement or opinion of the expert, and

(iii) if the document was released by a person or company other than the expert, the expert consented in writing to the use of the report, statement or opinion in the document. 2002, c. 22, s. 185; 2004, c. 31, Sched. 34, s. 12 (1, 2).

Public oral statements by responsible issuer

(2) Where a person with actual, implied or apparent authority to speak on behalf of a responsible issuer makes a public oral statement that relates to the business or affairs of the responsible issuer and that contains a misrepresentation, a person or company who acquires or disposes of the issuer’s security during the period between the time when the public oral statement was made and the time when the misrepresentation contained in the public oral statement was publicly corrected has, without regard to whether the person or company relied on the misrepresentation, a right of action for damages against,

(a) the responsible issuer;

(b) the person who made the public oral statement;

(c) each director and officer of the responsible issuer who authorized, permitted or acquiesced in the making of the public oral statement;

(d) each influential person, and each director and officer of the influential person, who knowingly influenced,

(i) the person who made the public oral statement to make the public oral statement, or

(ii) a director or officer of the responsible issuer to authorize, permit or acquiesce in the making of the public oral statement; and

(e) each expert where,

(i) the misrepresentation is also contained in a report, statement or opinion made by the expert,

(ii) the person making the public oral statement includes, summarizes or quotes from the report, statement or opinion of the expert, and

(iii) if the public oral statement was made by a person other than the expert, the expert consented in writing to the use of the report, statement or opinion in the public oral statement. 2002, c. 22, s. 185; 2004, c. 31, Sched. 34, s. 12 (3).

Influential persons

(3) Where an influential person or a person or company with actual, implied or apparent authority to act or speak on behalf of the influential person releases a document or makes a public oral statement that relates to a responsible issuer and that contains a misrepresentation, a person or company who acquires or disposes of the issuer’s security during the period between the time when the document was released or the public oral statement was made and the time when the misrepresentation contained in the document or public oral statement was publicly corrected has, without regard to whether the person or company relied on the misrepresentation, a right of action for damages against,

(a) the responsible issuer, if a director or officer of the responsible issuer, or where the responsible issuer is an investment fund, the investment fund manager, authorized, permitted or acquiesced in the release of the document or the making of the public oral statement;

(b) the person who made the public oral statement;

(c) each director and officer of the responsible issuer who authorized, permitted or acquiesced in the release of the document or the making of the public oral statement;

(d) the influential person;

(e) each director and officer of the influential person who authorized, permitted or acquiesced in the release of the document or the making of the public oral statement; and

(f) each expert where,

(i) the misrepresentation is also contained in a report, statement or opinion made by the expert,

(ii) the document or public oral statement includes, summarizes or quotes from the report, statement or opinion of the expert, and

(iii) if the document was released or the public oral statement was made by a person other than the expert, the expert consented in writing to the use of the report, statement or opinion in the document or public oral statement. 2002, c. 22, s. 185; 2004, c. 31, Sched. 34, s. 12 (4).

Failure to make timely disclosure

(4) Where a responsible issuer fails to make a timely disclosure, a person or company who acquires or disposes of the issuer’s security between the time when the material change was required to be disclosed in the manner required under this Act or the regulations and the subsequent disclosure of the material change has, without regard to whether the person or company relied on the responsible issuer having complied with its disclosure requirements, a right of action for damages against,

(a) the responsible issuer;

(b) each director and officer of the responsible issuer who authorized, permitted or acquiesced in the failure to make timely disclosure; and

(c) each influential person, and each director and officer of an influential person, who knowingly influenced,

(i) the responsible issuer or any person or company acting on behalf of the responsible issuer in the failure to make timely disclosure, or

(ii) a director or officer of the responsible issuer to authorize, permit or acquiesce in the failure to make timely disclosure. 2002, c. 22, s. 185; 2004, c. 31, Sched. 34, s. 12 (5); 2006, c. 33, Sched. Z.5, s. 15.

Multiple roles

(5) In an action under this section, a person who is a director or officer of an influential person is not liable in that capacity if the person is liable as a director or officer of the responsible issuer. 2002, c. 22, s. 185; 2004, c. 31, Sched. 34, s. 12 (6).

Multiple misrepresentations

(6) In an action under this section,

(a) multiple misrepresentations having common subject matter or content may, in the discretion of the court, be treated as a single misrepresentation; and

(b) multiple instances of failure to make timely disclosure of a material change or material changes concerning common subject matter may, in the discretion of the court, be treated as a single failure to make timely disclosure. 2002, c. 22, s. 185; 2004, c. 31, Sched. 34, s. 12 (7).

No implied or actual authority

(7) In an action under subsection (2) or (3), if the person who made the public oral statement had apparent authority, but not implied or actual authority, to speak on behalf of the issuer, no other person is liable with respect to any of the responsible issuer’s securities that were acquired or disposed of before that other person became, or should reasonably have become, aware of the misrepresentation. 2004, c. 31, Sched. 34, s. 12 (8).

Leave to proceed

138.8 (1) No action may be commenced under section 138.3 without leave of the court granted upon motion with notice to each defendant. The court shall grant leave only where it is satisfied that,

(a) the action is being brought in good faith; and

(b) there is a reasonable possibility that the action will be resolved at trial in favour of the plaintiff. 2002, c. 22, s. 185; 2004, c. 31, Sched. 34, s. 17.

Same

(2) Upon an application under this section, the plaintiff and each defendant shall serve and file one or more affidavits setting forth the material facts upon which each intends to rely. 2002, c. 22, s. 185.

Same

(3) The maker of such an affidavit may be examined on it in accordance with the rules of court. 2002, c. 22, s. 185.

Copies to be sent to the Commission

(4) A copy of the application for leave to proceed and any affidavits and factums filed with the court shall be sent to the Commission when filed. 2009, c. 34, Sched. S, s. 6 (1).

Requirement to provide notice

(5) The plaintiff shall provide the Commission with notice in writing of the date on which the application for leave is scheduled to proceed, at the same time such notice is given to each defendant. 2009, c. 34, Sched. S, s. 6 (2).

Same, appeal of leave decision

(6) If any party appeals the decision of the court with respect to whether leave to commence an action under section 138.3 is granted,

(a) each party to the appeal shall provide a copy of its factum to the Commission when it is filed; and

(b) the appellant shall provide the Commission with notice in writing of the date on which the appeal is scheduled to be heard, at the same time such notice is given to each respondent. 2009, c. 34, Sched. S, s. 6 (2); 2010, c. 1, Sched. 26, s. 7.

Limitation period

138.14 (1) No action shall be commenced under section 138.3,

(a) in the case of misrepresentation in a document, later than the earlier of,

(i) three years after the date on which the document containing the misrepresentation was first released, and

(ii) six months after the issuance of a news release disclosing that leave has been granted to commence an action under section 138.3 or under comparable legislation in the other provinces or territories in Canada in respect of the same misrepresentation;

(b) in the case of a misrepresentation in a public oral statement, later than the earlier of,

(i) three years after the date on which the public oral statement containing the misrepresentation was made, and

(ii) six months after the issuance of a news release disclosing that leave has been granted to commence an action under section 138.3 or under comparable legislation in another province or territory of Canada in respect of the same misrepresentation; and

(c) in the case of a failure to make timely disclosure, later than the earlier of,

(i) three years after the date on which the requisite disclosure was required to be made, and

(ii) six months after the issuance of a news release disclosing that leave has been granted to commence an action under section 138.3 or under comparable legislation in another province or territory of Canada in respect of the same failure to make timely disclosure. 2002, c. 22, s. 185; 2004, c. 31, Sched. 34, s. 23.

Suspension of limitation period

(2) A limitation period established by subsection (1) in respect of an action is suspended on the date a notice of motion for leave under section 138.8 is filed with the court and resumes running on the date,

(a) the court grants leave or dismisses the motion and,

(i) all appeals have been exhausted, or

(ii) the time for an appeal has expired without an appeal being filed; or

(b) the motion is abandoned or discontinued. 2014, c. 7, Sched. 28, s. 15.

[295] The first part of the leave test requires the plaintiffs to satisfy the court that the action is brought in good faith. Good faith is not presumed, but must be established by the plaintiffs on the normal civil standard; that is, on a balance of probabilities.

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[297] The parties agree that “good faith” involves a consideration of the subjective intentions of the plaintiffs in bringing their action, which is to be determined objectively.

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[303] Such analysis is not directly applicable to the requirement of “good faith” as that term is employed in s. 138.8 of the OSA. The statutory remedy for secondary market misrepresentation is afforded directly to shareholders for their own benefit and is not a vehicle to sue on behalf of the company for a wrong to the company. Proceedings alleging secondary market misrepresentation are brought to recover damages for loss to an individual shareholder or group of shareholders. The shareholder’s personal loss is central. There is no reason to read in a “high” or “substantial” onus requirement for good faith in this type of proceeding.

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[308] Accordingly, I interpret “good faith” in the context of s. 138.8, to require the plaintiffs to establish that they are bringing their action in the honest belief that they have an arguable claim, and for reasons that are consistent with the purpose of the statutory cause of action and not for an oblique or collateral purpose. “Good faith” involves a consideration of the subjective intentions of the plaintiffs in bringing their action, which is to be determined by considering the objective evidence.

3. Decision re: Good Faith

[309] I am satisfied that the plaintiffs are acting in good faith in pursuing these proceedings. They have a personal financial interest in the action, as persons who acquired IMAX shares during the Class Period and continued to hold such shares on August 9, 2006. They have also asserted altruistic reasons for commencing the action, to hold the defendants accountable for misrepresentations to the public, and to send a message to directors and officers of other public companies that they too will be held accountable for misrepresentations to the public. These reasons for pursuing the action are consistent with the legislative purpose of the statutory remedy, which is deterrence. The plaintiffs have pleaded a misrepresentation that is supported by the evidence of the Company’s Restatement. There is no evidence of any ulterior motive or conflict of interest. Accordingly, they meet the first branch of the test for leave to assert a claim for secondary market misrepresentation.

C. Part Two of the Statutory Leave Test: “Is There a Reasonable Possibility that the Action Will Be Resolved at Trial in Favour of the Plaintiffs?”

[310] The second branch of the leave test requires that the court be satisfied that there is a reasonable possibility that the action will be resolved at trial in favour of the plaintiff. The interpretation of this part of the leave test was the focus of extensive argument at the hearing of the leave motion.

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[320] A “possibility” is something that is possible. “Possible” has been defined as “capable of existing, happening or being achieved” and “that may exist or happen, but that is not certain or probable”.[123] Unlike a “probable” event, a possible event does not have to be more likely than not to occur, and may in fact be unlikely or improbable. If one were dealing only with the plaintiff’s possibility of success at trial, one would ask whether the plaintiff “may” or “could” be successful. That is, is there evidence that, if believed, would support the plaintiff’s action?

[321] The word “possibility” in s. 138.8 is modified by the adjective “reasonable”. There are two alternative meanings of the adjective “reasonable” that may be applicable. First, “reasonable” may relate to the degree of possibility of success that the plaintiff is required to establish at the motion – as the respondents contend, “reasonable” could be considered “fair, proper, just or moderate,”[124] or more than a “mere possibility” and equivalent to a “serious possibility”.[125]

[322] One might also consider the term “reasonable” as it is used in other legal contexts, as tied to reason, evidence and common sense. For example, a “reasonable doubt” in the criminal context is described as “not an imaginary or frivolous doubt, [not] based on sympathy or prejudice. A reasonable doubt is a doubt based on reason and common sense, which must logically be derived from the evidence or absence of evidence.”[126]

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[324] The word “reasonable” as it is used in s. 138.8 captures both meanings. “Reasonable” is used instead of “mere” to denote that there must be something more than a de minimis possibility or chance that the plaintiff will succeed at trial. The adjective “reasonable” also reminds the court that the conclusion that a plaintiff has a reasonable possibility of success at trial must be based on a reasoned consideration of the evidence.

[325] There are other factors that in my view inform the test that the court should apply. First there is the context in which the determination is made, in a motion based on affidavit evidence and transcripts of examinations. The merits are to be evaluated at the motion for leave stage, with a view to determining whether there is a reasonable possibility of success at trial.

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[331] The leave provision, working with the definition of the statutory cause of action and defences, requires plaintiffs to put forward the evidence they rely on as to the misrepresentation, and the extent of knowledge or participation required for non-core documents and liability for officers, and permits each proposed defendant to offer an account that may contradict the plaintiffs’ allegations, or would fall within the terms of one or more of the defences afforded by the statute.

[332] The evidence must be considered at the leave stage to determine whether the plaintiffs’ action, after the respondents have had the opportunity to put forward evidence to support their defences and the positions of the parties have been explored in cross-examination, has a reasonable possibility of success.

[333] In this regard it is not sufficient (as the respondents contend) to put forward defences which the plaintiffs must “overcome”. Nor is the court required (as the plaintiffs assert) to leave any assessment of the defences to a trial. The court must consider all of the evidence put forward in the leave motion, including evidence supportive of any statutory defence. Because the onus of proof of a statutory defence is on the respondents, the court must be satisfied that the evidence in support of such a defence at the preliminary merits stage will foreclose the plaintiffs’ reasonable possibility of success at trial.

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[336] While the statute speaks of leave in the general sense, that is leave to proceed with the action, I have approached this task individually with respect to each respondent. If on the evidence at this stage, the plaintiffs do not have a reasonable possibility of success at trial against a specific Individual Defendant or proposed defendant, the statutory action will not be permitted to proceed against that person.

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[339] As noted, the plaintiffs have pleaded facts that would exceed the damages cap only in respect of the Individual Defendants and Gamble. It is unnecessary at the leave stage to determine whether there is a reasonable possibility that the damages cap will be exceeded. The statutory threshold speaks of a reasonable possibility of success at trial, and does not invite the court to make specific findings with respect to the measure of success the plaintiffs might hope to achieve against a particular respondent. Provided that there is a reasonable possibility that the action will succeed against a particular respondent, the claim against that person should be permitted to proceed.

[23] No doubt, the test under s. 138.8(1) is a matter of general "importance". And this is not an issue that can await the trial process before appellate review. These factors meet the second branch of the test under 62.02(4)(b) -- they are matters of sufficient "importance" that they would ground granting leave to appeal.

[24] That said, the defendants cannot satisfy the first branch of the test under rule 62.02(4)(b). On the facts, as found by van Rensburg J., this was not a close call that turned on the precise test used to grant leave. The trial judge could 22nclude that there was recklessness or deceit. Disclosure of a change in accounting policies, to alert the market that principles are not consistent on a year-to-year basis, is not a subtle point. Mischaracterizing the state of progress of some projects to bring them within new and aggressive accounting principles is rather more than a "mere accounting error", the characterization suggested by the defendants to van Rensburg J.

[25] I pause to emphasize: these findings are interlocutory and do not bind the trial judge, who may come to different findings of fact on the basis of the record presented at trial. [See Note 11 below] But, given van Rensburg J.'s finding that these facts are available to the plaintiffs, whether one emphasizes the deterrence or compensatory goals of the statutory cause of action, this is the sort of claim that ought to be permitted to proceed.[26] van Rensburg J.'s decision is the first word on the test for leave under s. 138.8(1) of the OSA. Doubtless, it is not the last. But that is no reason to push these interesting questions up to the appellate level where there is no good reason to doubt the correctness of the decision. Additional Specific Arguments Respecting Leave Under the OSA

[27] The moving parties argue that van Rensburg J. erred by (1) setting too low a threshold for establishing good faith by the plaintiffs, thus undermining the gatekeeper function; (2) approving the claim against the defendant Gamble, though the claim fails to plead statutory elements; (3) reversing the onus respecting the statutory defences; [page222] (4) refusing to consider whether there was evidence (i) to satisfy statutory criteria to establish recovery beyond the statutory damages cap, or (ii) to establish liability for "non-core documents"; (5) misinterpreting and misapplying the expert reliance defence. [See Note 12 below] The Good Faith Requirement

[28] van Rensburg J. found that Mr. Silver and Mr. Cohen purchased shares in IMAX at the material times, that they had no oblique motive in doing so, and that they wished to assert their claims to recover for their losses and to deter other public issuers from behaving as IMAX did in future. There was ample evidence on which to base these conclusions. The defendants argue that more rigorous scrutiny of the sufficiency of each aspect of the claim is required to satisfy the "gatekeeper" function envisioned by the legislature. To go down that route would restrict the class of plaintiffs to those who are sophisticated in the law. Plaintiffs are entitled to rely upon their expert counsel to frame their claims. Any higher requirement could work serious injustice against potential plaintiffs. [See Note 13 below]

[38] In my view, as Belobaba J. suggested in Ironworkers, the threshold should be more than a “speed bump” (para. 39), and the courts must undertake a reasoned consideration of the evidence to ensure that the action has some merit. In other words, to promote the legislative objective of a robust deterrent screening mechanism so that cases without merit are prevented from proceeding, the threshold requires that there be a reasonable or realistic chance that the action will succeed.

[39] A case with a reasonable possibility of success requires the claimant to offer both a plausible analysis of the applicable legislative provisions, and some credible evidence in support of the claim. This approach, in my view, best realizes the legislative intent of the screening mechanism: to ensure that cases with little chance of success — and the time and expense they impose — are avoided. I agree with the Court of Appeal, however, that the authorization stage under s. 225.4 should not be treated as a mini-trial. A full analysis of the evidence is unnecessary. If the goal of the screening mechanism is to prevent costly strike suits and litigation with little chance of success, it follows that the evidentiary requirements should not be so onerous as to essentially replicate the demands of a trial. To impose such a requirement would undermine the objective of the screening mechanism, which is to protect reporting issuers from unsubstantiated strike suits and costly unmeritorious litigation. What is required is sufficient evidence to persuade the court that there is a reasonable possibility that the action will be resolved in the claimant’s favour.

[118] In CIBC, the defendants challenged the threshold that must be met by a plaintiff applying for leave under s. 138.8 OSA. One of the conditions that must be met to obtain leave is that the court must be satisfied that “there is a reasonable possibility that the action will be resolved at trial in favour of the plaintiff”: s. 138.8(1)(b) OSA. Strathy J. interpreted this statutory language as establishing a relatively low threshold according to which leave will be denied only if, “having considered all the evidence adduced by the parties and having regard to the limitations of the motions process, the plaintiffs’ case is so weak or has been so successfully rebutted by the defendant, that it has no reasonable possibility of success”: para. 374. The Court of Appeal upheld this interpretation of s. 138.8(1)(b).

[119] The defendants in CIBC argued in this Court that the threshold articulated by Strathy J. is too low.

[120] I will address the point briefly, given the Court’s recent decision in Theratechnologies inc. v. 121851 Canada inc., 2015 SCC 18, [2015] 2 S.C.R. 106.

[121] In Theratechnologies, the Court was asked to interpret s. 225.4 of the Securities Act, CQLR, c. V-1.1 (“QSA”), the Quebec counterpart to s. 138.8 OSA. That section, which introduces a leave requirement for a statutory claim based on a secondary market misrepresentation in Quebec, provides that there must be a “reasonable possibility that [the action] will be resolved in favour of the plaintiff” for leave to be granted. The Court stated that for an action to have a “reasonable possibility” of success under s. 225.4, there must be a “reasonable or realistic chance that [it] will succeed”: Theratechnologies, at para. 38. Claimants must “offer both a plausible analysis of the applicable legislative provisions, and some credible evidence in support of the claim”: Theratechnologies, at para. 39.

[122] There is no difference between the language of s. 138.8 OSA and that of s. 225.4 QSA. Moreover, both provisions relate to leave applications for statutory claims based on secondary market misrepresentation, albeit in different jurisdictions. Accordingly, the threshold test under s. 225.4 QSA articulated in Theratechnologies applies in the context of s. 138.8 OSA.

[35] The "reasonable possibility" test means that in many cases the defendant may have persuaded the leave judge on the evidence before the court that the defendant will probably prevail at trial. This doesn't mean that the judge is obliged to dismiss the motion for leave. The judge may still conclude that the plaintiff has a "reasonable possibility of success" at trial. For example, if the judge thinks in terms of percentages, the judge may say to herself that the chances of the defendant succeeding at trial are excellent -- 80 or even 90 per cent. This still leaves a 10 to 20 per cent chance of success for the plaintiff, enough to clear the "reasonable possibility" hurdle.

[41] I do not accept the appellant's submission that scrutiny of the evidence on a leave application should be so limited. In my view, the "reasonable possibility" requirement of the leave test requires scrutiny of the merits of the action based on all the evidence proffered by the parties. Far from undermining the objective of the legislation, such scrutiny of the entire body of evidence is necessary to give effect to the purpose of the screening mechanism.

[42] As noted in several decisions of this court, s. 138.8(1) was enacted to address concerns that existing safeguards were not sufficient to prevent unmeritorious claims: Goldsmith v. National Bank of Canada (2016), 128 O.R. (3d) 481, [2016] O.J. No. 146, 2016 ONCA 22, at paras. 26-28; Green v. Canadian Imperial Bank of Commerce, supra (C.A.); Kinross. Abella J. noted in Theratechnologies Inc., at para. 38, that in response to this concern s. 138.8 was meant to create a "robust deterrent screening mechanism so that cases without merit are prevented from proceeding" and, further, that the assessment requires a "reasoned consideration of the evidence to ensure that the action has some merit" (emphasis added). [page171]

[43] It follows from these comments that a "reasoned consideration of the evidence" must include scrutiny of the evidence proffered by both sides, and some weighing of the defence evidence against that adduced by the plaintiff. To suspend the analysis when the plaintiff has presented a case that could satisfy the "reasonable possibility" test is inconsistent with the leave test acting as a "robust deterrent screening mechanism". Abella J.'s endorsement of Belobaba J.'s comments in Ironworkers Ontario Pension Fund (Trustee of) v. Manulife Financial Corp., [2013] O.J. No. 3455, 2013 ONSC 4083 (S.C.J.), that s. 138.8 should operate as more than just a "speed bump", is a clear indicator that the motion judge must do more than simply ascertain whether the plaintiff has presented evidence of a triable issue. Instead, the motion judge must review all the evidence adduced by both parties to ascertain whether there is "a reasonable or realistic chance that the action will succeed": Theratechnologies, at paras. 38 and 39.

[14] Section 138.8(1) sets out a two-part test for obtaining leave to bring an action under Part XXIII.1 of the OSA and places the onus on the plaintiffs to demonstrate that (1) their proposed action is brought in good faith and (2) has a reasonable prospect for success at trial. As s. 138.8(1) requires an examination of the merits, the plaintiffs submit that the section is supplemented with s. 138.8(2) and (3). They rely on the mandatory language in s. 138.8(2) ("and each defendant shall" [emphasis added]) and [page206] submit that without the benefit of this requirement and the ability to cross-examine, a plaintiff would be deprived of the tools necessary to meet the standard the legislature created in s. 138.8(1).

[15] This submission ignores the legislative purpose of s. 138.8. The section was not enacted to benefit plaintiffs or to level the playing field for them in prosecuting an action under Part XXIII.1 of the Act. Rather, it was enacted to protect defendants from coercive litigation and to reduce their exposure to costly proceedings. No onus is placed upon proposed defendants by s. 138.8. Nor are they required to assist plaintiffs in securing evidence upon which to base an action under Part XXIII.1. The essence of the leave motion is that putative plaintiffs are required to demonstrate the propriety of their proposed secondary market liability claim before a defendant is required to respond. Section 138.8(2) must be interpreted to reflect this underlying policy rationale and the legislature's intention in imposing a "gatekeeper mechanism".

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[20] Similarly, in a motion under s. 138.8 of the Act, the onus to demonstrate that the proposed claim meets the required threshold remains with the plaintiffs. The onus does not shift to the defendants. A defendant that does not "lead trump" by filing affidavit evidence in response to a motion under s. 138.8 may well take the risk that leave will be granted to the plaintiffs. It does not follow, however, that a defendant is obligated to file evidence or produce an affidavit from each named defendant. It is a well-established principle that, as a general proposition, it is counsel who decides on the witnesses whose evidence will be put forward. [See Note 9 below]