Costs and procedural complexities – appeal struck out for simple disclosure failures

Although Gordon Exall (he of the excellent Civil Litigation Brief) said recently on Twitter that he wished that he covered a subject which “got [him] trips around the world”, that “overrated pastime” (as I described it in reply) has reduced the number of my UK-related posts across the autumn; even Gordon’s prodigious output might have been cut down in the circumstances. Two of my trips, to Leeds and London, were in his company (along with Jonathan Maas of Huron Legal) and I have done other UK events, but the time-eaters have involved abroad, either because I have been away or because of the cross-border implications consequent on the Schrems decision.

It is time that I caught up with some of the cases relating to eDisclosure in the courts of England and Wales. On this, as on anything else relating to civil procedure, the best source is Gordon Exall’s blog which gives us no excuse for missing the disclosure cases.

If Smailes v McNally is the only recent case with significance to match older ones like Earles v Barclays, Goodale v The Ministry of Justice or Digicel v Cable & Wireless, the few eDisclosure cases we have had are nonetheless important. Not all of them derive directly from Part 31 and its practice directions but relate either to costs or to overarching concepts like proportionality or the shadow of Mitchell. I will take them one post at a time over the next few weeks, starting with the most recent.

Walton & Anor v Allman [2015] EWHC 3325 (Ch) (18 November 2015) looks complicated, both in the judgment itself and in Gordon Exall’s helpful summary (see Denton, Documents and Delay: failures in disclosure lead to appeal being struck out). This is partly because it was a case derived from the outcome of another case, and partly because it was an appeal heard by one judge against the finding of another following a peremptory order made by yet a third (I lost count of the other hearings and judges named in what had begun as a dispute over the sale of a pony).

It was a relief from sanctions application so required analysis of Rule 3.9 as that has developed via the Mitchell and Denton cases.

You can get all that from Gordon Exall’s post, and I won’t recite it here. The thing which really matters is that a fairly straightforward order was made for disclosure by a given time and date. Disclosure was made late or not at all. No proper explanation was given for the delay and the final application was made late – that understates it somewhat since it was made on the morning of the hearing. It not the first time in the course of the action that there had been a late application for relief from sanctions because of late production of documents.

That is all you need to know, really. The documents in question cannot have been voluminous; no complex analysis was required as to the scope or meaning of the order; this was not to do with the wrong software or search terms or anything else technical.

We are not told the sale price of the pony. We do, however, get a glimpse of some of the costs incurred in fighting about it – £42,000 claimed by the winning party in the pony dispute, much of it to get sight of a few bank statements and other everyday financial documents; we don’t know what the losers’ costs were.

Disclosure matters.


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 Discovery, eDisclosure, eDiscovery, Electronic disclosure, Relief from sanctions. Bookmark the permalink.

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