Court decisions about procedural hearings rarely tell the full story. There may be all sorts of reasons why two good firms of solicitors should find themselves, three months before a 10-day trial, at a pre-trial review onto which had been tacked a specific disclosure application and an application to strike out parts of witness statements. There may also be good reason why one of those parties had clocked up £47,000 in costs – “a very large sum of money for a one hour application” as the judge said mildly.
The case is Omni Laboratories Inc v Eden Energy Ltd, and the hearing came before Mr Justice Akenhead in the Technology and Construction Court. I am obliged to His Honour Judge Simon Brown QC for drawing my attention to it.
The ruling is short and I will leave you to read it, merely pointing to the points which appeal to students of case management.
The bundle for the specific disclosure application (on this one hour appointment) ran to 380 pages “three quarters of which has not been referred to in argument”.
There was a dispute, at this very late stage, about the use of a particular keyword, one which was bound to occur frequently in the documents. You can see for yourself what the judge said about the merits (the application failed) but why did this not come up earlier? The first Case Management Conference (that is, before the first CMC) would have been a good time to discuss things like this, with plenty of time to take any dispute to the court.
Application was made, at this late stage, for a hard drive to be searched. The judge heard evidence about what had been done and said “it seems to me that it is not proportionate to require anything more to happen. Otherwise it simply becomes a fishing expedition”.
Of a further demand, for some invoice details, the judge said “It has been made clear that those documents, everything that they have, have been provided and, therefore, I rule that that application cannot really be taken any further”. Two further points of broadly similar kind were beaten off on much the same grounds. So, 5-Nil to the respondents. As I said in opening, one does not know all the circumstances here, but my guess is that the result would have been the same, without the expenditure of time and costs, if the points had been aired, and if necessary fought, at a much earlier stage.
And what costs they were! Many judges, I think, would have been more forthright in their observations on the ratio of expense to value even if (as the judge himself accepted) there was more too it than just poling up for the hearing. Not every judge, it must be said, would have rolled up his sleeves and cracked through the hearing as this one did.
My main interest in this judgment lies in paragraph 25 where the judge said this:
Generally, with regard to all these documents, disclosure of which is sought, it may well be a matter of comment at the trial and the defendants may wish legitimately to make some capital out of the fact that a number of documents, which it would expect to exist, do not exist and apparently have never existed. That may be material which may assist it or not in their case…
This illustrates a fundamental principle of UK disclosure which will be as incomprehensible to US lawyers as their preservation rules are to us. It is perfectly proper to make specific disclosure applications where there are apparent gaps in the disclosure which has been given, and quite often they are successful (we have no way of knowing how many are made and what the success rate is). Ultimately, however, alleged deficiencies in disclosure are something which falls to be considered by the judge at trial, with their absence, and the reasons for their absence, being amongst the factors which the judge weighs in deciding the outcome. The primary test is whether justice can be done without the documents.
That does not mean that a case cannot be struck out, in extreme cases, for failure to comply with an order or for conduct from which the court may infer deliberate destruction – see Rybak v Langbar International for an example of the latter; – my article about it is here.
There is a growing feeling (it was aired at the Commercial Litigation Forum last week) that one weapon in the battle against excessive costs is more rigorous enforcement of orders and time limits. As I say, I do not know all the circumstances behind this application, nor where the final costs bill will fall, but I reckon the defendants got off lightly to escape with no more than gentle observations about timing and about the need to keep costs to a proportionate level.