Is quite rare to come across UK cases where the quality and costs of disclosure become the subject of a reported judgment. In rare cases such as Digicel, Earles or Goodale, disclosure is either the primary subject-matter of the judgment or is a sufficiently important part of it that (if the judgment is reported at all) we get to hear of it.
Judgments must, in fact, be made every week which record adverse comment, or adverse costs orders, against a party which has failed to comply with its disclosure obligations. Whilst these are often to do with under-disclosure (that is, a failure to disclose that which ought to have been disclosed) it is just as important to know of cases where one party imposed an unnecessary burden on the other by over-disclosing or by the manner in which the documents were presented to the other side. The only reported case I have ever come across on this pre-dates the 1999 rules and, indeed, the days of electronic documents.
Vector Investments v Williams  EWHC 3601 (TCC) (05 November 2009) is of the latter kind. I conclude from the references in it to “files” that disclosure was given on paper, which itself raises questions, but not those which came up between the parties. It is a judgment of Mr Justice Ramsey in the Technology and Construction Court. The main interest as to costs generally lies in the judge’s consideration of the liability for costs following a compromise and a Tomlin Order. The only outstanding point for determination was the assessment of costs, and the judge felt obliged to consider the whole subject of the principles applicable to assessment of costs. You can get the flavour of it from a sentence in paragraph 71 which reads “How should the court approach cases where a claimant has made offers which do not comply with Part 36 and which have been beaten by the claimant as a result of settlement?”.
The subject of costs is one of Professor Dominic Regan’s specialist areas, and it is doubtless for that reason that he was aware of this decision where those of us who are interested in the narrower subject of disclosure had missed it. He mentioned it in passing on the telephone on Friday and I immediately realised that, however important it is as a judgment on costs generally, it is more so in relation to disclosure.
I will come back to this subject, which is covered from paragraph 84 of the judgment under the heading The costs of inspection of Vector’s documents. For now, I will simply quote two paragraphs which give you the flavour of it:
93 I am persuaded by the evidence in this case that the approach taken by Vector was to disclose whole files which contained duplicate and unnecessary documents and that this led to unnecessary costs being incurred by Williams in carrying out the inspection. I also accept the fact the trial bundle contained 70 bundles compared to over 800 produced by Vector for inspection, indicates to some extent that irrelevant documents or documents not necessary for standard disclosure were included.
94 This is a case, therefore, where Vector’s costs of disclosure will have been lower because they did not carry out work of excluding excessive documents. For that reason I do not consider that any reduction should be made to Vector’s costs for this. In relation to Williams’ costs there was, on any view, a need for a substantial inspection exercise in this case. Doing the best I can on the documents before me, I consider that Vector should pay Williams £20,000 in respect of these costs. This, in my view, should be a stated amount in respect of those costs under CPR 44.3(6)(b). In coming to that figure I have assessed a lower figure to take account of the fact that some of the difficulties would, in my view, have been avoided if meetings had been held or an application made to the court.
That is enough to hint that the preceding paragraphs include criticism for a failure to cooperate, as well as for the delivery of a mass of duplicated and undifferentiated documents. It does not matter for these purposes whether disclosure is of paper or electronic documents – that affects how disclosure is given and the methods used for narrowing what is disclosed and produced for inspection, but the applicable principles are those of disclosure, whatever the form of the documents..
As I say, I will come back to this case, but I thought you would like to know about it as soon as possible.
Dominic Regan and I are leading a seminar at Ely Place Chambers on 12 May from 2.00 to 5.15. We will cover the rules and the practice, and will review some cases. We will be accompanied by some suppliers of software applications used to manage litigation documents, who will introduce some of the concepts and explain how applications of this kind can help. There will be a charge of £80 plus VAT, a total of £94. Contact Christopher Drury, Clerk at Ely Place Chambers, to reserve a place.