“How modern litigation should not be conducted” – the High Court refuses to order specific disclosure and criticises the Defendant’s conduct

Posted by Susie Dryden on
The High Court in Webb Resolutions Limited –v- JV Limited T/A Shepherd Chartered Surveyors [2013] EWHC 3526 commented on procedural defaults when it considered whether it was open to the claimant to apply to strike out parts of a defence and the defendant’s application for specific disclosure.

Procedural facts of the case

The parties gave disclosure as ordered on 27 March 2013. The Claimant served its witness evidence on time on 30 April 2013. On 7 June 2013, in accordance with the Court’s directions, the Claimant's solicitors filed the Claimant's lending expert's report with the Court.

At 3.55pm that day the Defendant's solicitors sent a 7 page letter asserting that there were "important and substantial gaps" in the disclosure which the Claimant had provided and that "if you do not now give disclosure of the documents we identify below we reserve the right to apply to the court for an order for specific disclosure". The letter identified 18 wide-ranging categories of documents.

The Defendant's solicitors further stated the Defendant’s expert report could not be finalised until full disclosure had taken place. The letter did not however acknowledge the fact that the Defendant was shortly to be in breach of the Order requiring exchange of experts' reports.

On 28 June 2013 the Claimant's solicitors responded by stating that the Defendant had had copies of the Claimant's disclosure since 12 April 2013 and asked whether the Defendant had approached the Court for an extension of time to exchange reports. The Claimant's solicitors further stated that some of the documents requested by the Defendant had already been disclosed.

Defendant’s application for specific disclosure

The Defendant took no further step to pursue the question of disclosure until 21 October 2013 when it issued an application seeking disclosure of the documents originally requested (including documents which had already been provided by the Claimant).

In response, the Claimant issued a cross-application to strike out paragraphs of the Defendant’s defence which would remove the Defendant’s basis for disclosure. They also applied for an unless order requiring service of the Defendant’s expert report.

By the time of the hearing on 8 November 2013 the Defendant had still not issued any application seeking an extension of time for service of its expert's report.

The judgment

The Judge held that it was not open to the claimant to apply to strike out parts of a defence almost a year after directions had been given in preparation for a full trial of the relevant issues.

The Judge also refused the defendant’s application for specific disclosure. Some of the documents sought were highly speculative and nothing more than a fishing expedition, while the judge was unpersuaded that other documents sought would advance the defendant’s argument as alleged.

Since no additional disclosure was ordered, the Defendant was ordered to file and exchange any expert evidence by 4pm 14 days after the date of handing down of the judgment. The Judge further ordered that if the Defendant failed to comply with this direction it would not be permitted to rely upon that expert evidence at the trial.

The Judge’s criticism

In the post-script of his judgment, the Judge condemned the Defendant’s behaviour by stating that “The Defendant's pursuit of additional disclosure… is an object lesson in how modern litigation should not be conducted”.

The Judge highlighted the following failings of the Defendant’s conduct leading up to the application:

  • The Defendant had waited until the day upon which expert reports were due to be served before raising the request for further disclosure.
  • The Defendant did not acknowledge at any stage that it was in default of the order for exchange of expert evidence. Even when issuing its application for specific disclosure the Defendant did not apply for an extension of time or relief from sanction as it should have done.
  • Despite full and clear explanations from the Claimant’s solicitors, the Defendant pressed ahead with the application for all its original categories of documents without apparent regard for what it had been told.
  • The Defendant displayed no urgency either in correspondence or in taking the step of issuing the application.
  • The Defendant’s application for four residual categories of disclosure was eventually accompanied at the hearing by five files of documents when only a small number of these documents were of real relevance.

Lessons to be learned

  • The Judge’s comments make it clear that litigators who find themselves in a similar position should:
  • Apply for additional disclosure in advance of any date ordered by the Court for the mutual exchange of evidence.
  • Apply for extension of time for disclosure of any expert report before any deadline for service of such a report has been reached.
  • Promptly apply for relief from sanctions if any Court deadlines has been missed.
  • Not delay in issuing applications for extensions of time.
  • Make sure that only essential documents are provided to accompany an application.

About the Author

Susie heads the Commercial Litigation team on the South Coast. The team were rated number one in the area (Southampton and surrounds) for Dispute Resolution in Chambers 2013.

Susie Dryden
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023 8085 7159

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