Costs penalty for non-compliance with e-disclosure obligations

A judgment given yesterday by His Honour Judge Simon Brown QC sitting as an Additional High Court Judge in the Birmingham Mercantile Court, will focus minds on the need to comply with the requirements of Part 31 CPR and the Practice Direction to Part 31 CPR when giving disclosure.

The case is Earles v Barclays Bank Plc in which the successful Defendant was penalised in its costs recovery after failing to observe the requirements of the disclosure rules. The judge was at pains to stress that there was no intent to conceal documents and that the omissions were the result of incorrect decisions as to the proportionality of the scope of search. The focus is not on the rules for their own sake but on the fact that if the Defendant’s disclosure had been conducted properly, then not only would much time have been saved at trial but a summary judgment application might have been successful.

The judgment surveys a wide range of sources dealing with the need to give a fact-findng judge the facts on which he can base his decision, and with the conclusion that there is no substitute for the documents when memories must necessarily fade with the passage of time. Even if, as here, the conduct of the defendant’s witnesses won the day in the end, timely disclosure of all the disclosable documents would have saved much of the time and costs.

The judgment bears closer examination which I do not today have time to give it, with a plane to catch for Washington tomorrow. There is much to quote, from the learned authorities cited in the judgment as well as those relating to the case itself.

If I were to pick one passage, however, as illustrating the importance of this judgment, it is this one from Paragraph 71:

It might be contended that CPR 31PD 2A and electronic disclosure are little known or practised outside the Admiralty and Commercial Court. If so, such myth needs to be swiftly dispelled when over 90% of business documentation is electronic in form. The Practice Direction is in the Civil Procedure Rules and those practising in civil courts are expected to know the rules and practice them; it is gross incompetence not to.

This should negate one of the reactions often heard when the judgment in Digicel (St Lucia) v Cable & Wireless is discussed – many seem to think that the principles enunciated in it apply only to big cases. That is not so. It may well be that the consideration required by the Practice Direction results in a decision to ignore electronic documents where it is not proportionate to have them disclosed. The consideration itself, however, is compulsory and, had it taken place in this case, the outcome as to costs would have been very different.

More on this when I get back from the next round of roving.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Case Management, Court Rules, CPR, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Litigation, Litigation costs, Mercantile Courts, Part 31 CPR. Bookmark the permalink.

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