A decision about edisclosure made in the Commercial Court by Mrs Justice Gloster DBE in August has recently been published on BAILII. The case is Berezovsky v Abramovich , the pleaded sum at stake exceeds US$3.5 billion, and the allegations made by both parties are serious ones of dishonesty and impropriety. The application was made before standard disclosure had taken place for what is variously called “train of enquiry” or “Peruvian Guano” disclosure, referred to by the judge as “enhanced disclosure”. No formal application was in fact made and no evidence was filed either in support or in answer. It seems unlikely that the judge would have reached a different conclusion if such evidence had been before her, although her rejection of the application was based in part on its lack of particularity.
The judge did, however, helpfully set out the sort of evidence which a court might expect on such applications, namely:
- i) what documents or categories of documents might be regarded as liable to be searched for, or disclosable, in accordance with standard disclosure procedures;
- ii) what wider or different categories of document would have to be searched for if an order for enhanced disclosure were to be made;
- iii) any indication as to the nature of the searches that would have to be carried out, or the extent of the relevant universe of documents, if an enhanced order were made, or the difficulties, if any, that the conduct of such a search would impose on the parties; and
- iv) any indication of what inquiries, in relation to which issues, such an order for disclosure would require.
The judgment is short and I will leave you to read the arguments for yourself. The key points, to my eye, include the following:
Different principles apply to cases involving fraud, dishonesty etc “where traditionally it was accepted that train of enquiry disclosure might be appropriate”.
The use of arguments based on recommendations made by Lord Justice Jackson in his Review of Civil Litigation costs – the first time I have seen this. I refer to Jackson LJ’s draft Rule 31.5A when I speak on the subject of orders which might be sought without waiting for the draft rule to be adopted, and it is encouraging to see Leading Counsel doing the same in the Commercial Court, albeit on the losing side.
It was argued for the claimant that there would be a “huge, and wasted, duplication of effort” if the disclosure exercise had to be conducted twice, as would be the result if the court waited until standard disclosure had been given before ordering enhanced disclosure.
The defendants in answer said that jurisdiction to order enhanced disclosure “should only be exercised in a narrow class of case where it had been demonstrated that such enhanced disclosure was both necessary and proportionate”.
The exercise sought by the claimant “applied to all issues arising in the case without limitation” but the size of the claim of itself “cannot point to the conclusion that the costs of the disclosure exercise should be wholly and inappropriately expanded” and that any order for enhanced disclosure should be “limited to those particular issues or classes of documents in respect of which it could really be demonstrated that an enhanced disclosure obligation was necessary”.
The judge accepted that an order for enhanced disclosure might be appropriate at some future stage. The parties do not yet know what documents will be disclosed as standard disclosure, and the “court has no material before it adequately to inform it what searches would have to be made, of what categories or classes of document, to enable documents to be disclosed which might lead to a train of enquiry. In particular, there is no workable mechanism for how such a search could be linked to particular issues or classes of documents.”
Applications for enhanced disclosure, she said, should be “focussed, directed at an identifiable category or class of document and linked to specific issues, not broadly aimed at the whole gamut of issues” and added:.
I take the view that if such an order is to be made in this case, then the relevant party who is being asked to conduct disclosure on such a basis, and the court before whom the application is being made, should have an appropriately clear idea as to: what documents are likely to fall within the scope of the order; to what specific issues the relevant documents to be searched on the enhanced basis relate; and what the relevant “trains of inquiry” might be. On the basis of the information presently before me, I have no way whatsoever of making an informed decision as to such matters.
It seems to me that you can ignore all the arguments and point to this one as an obvious reason for rejecting the application. That applies at much more everyday levels in civil litigation: judges cannot properly make orders for disclosure (or for any other aspect of case management come to that) without sufficient information to appreciate the implications of the order they are asked to make.
It is worth drawing attention to the passage from Hollander on Documentary Evidence, Tenth Edition at paragraph 8.15 (that is Charles Hollander QC of Brick Court Chambers) referred to by counsel for the defendant which reads:
In general, the Peruvian Guano order should be limited to particular issues of classes of documents. The burden will be squarely on the person seeking the order to show it is justified by the particular circumstances, not disproportionate, and does not extend over too many classes of documents. The person seeking the order should remember that the rules were intended to cut down the amount of documents disclosed.
I have emphasised the passage which matters, and matters in a context wider than Peruvian Guano orders. I wonder if we can work that in to the next revision of the eDisclosure Practice Direction.