Barrister Gordon Exall has just reached the fourth anniversary of his first publishing his Civil Litigation Brief, now an indispensable guide to civil procedure.
In one of his most recent reports (never say “the most recent” with Gordon, because he is bound to have published another one before you next look) he tells of a case called Powell -v- Watford Borough Council, in which he appeared for the ultimately successful appellant / claimant, where disclosure failures play a major part.
You can read Gordon Exall’s summary here (there is not yet a public version). The bit you might like to focus on is the commentary on the form and substance of the list. The response to a peremptory order for specific discovery came in the form of a letter simply stating that searches been made and that there were no documents of the kind referred to in the order. The extent of the defendants’ search can be judged by the fact that at least one such document was found by a search on the Internet.
Judgment was entered for the claimant on the basis of non-compliance with the peremptory order, but that was set aside because “the defendant’s letter could have constituted compliance” (Gordon Exall’s words). The trial on liability took place a few days later and the claimant lost.
The claimant appealed both on liability and on the non-compliance with the peremptory order, and won on both points.
Just pausing there, I have sought to abbreviate Gordon’s already concise summary but you may like to ask yourself how an unrepresented claimant could have picked his or her way through a procedural tangle like this.
In dealing with breach of the peremptory order, Mr Justice Jay held that the defendant’s letter did not constitute compliance with the peremptory order. The reasons, as summarised by Gordon Exall, included:
- It was not in proper form. The rules required that disclosure be by list.
- The letter was defective in substance. It did not state who had carried out the search and what that search consisted of.
- There were clearly relevant documents which had not been disclosed. The written document had sections on safety and risk assessments which … were clearly relevant to the issues before the court.
The points which interest me most from this are not really the failure to disclose clearly relevant documents, an everyday occurrence whether the reason is oversight or deliberate omission. It is what the judge said about the form and substance of the list.
The question “when is a list not list” came up both in Smailes v McNally  and in Euro-Asian Oil SA v Abilo 
In Smailes, it was but one of the factors which made this case an object-lesson for all litigating lawyers because a £45 million claim was struck out for disclosure failures without any consideration of the merits.
The arguments in Euro-Asian included the question whether the list “had been prepared in apparent but not real compliance with the obligation to give [disclosure]”.
The point is particularly important in the context of a Peremptory or Unless order requiring a list to be served by a particular date. The battles are inevitably fought afterwards and, if it transpires that the list was not a list, it is by then too late to remedy the breach – that took place on the expiry day of the order requiring the list-which-was-not-a-list.
Everyone responsible for giving disclosure in civil litigation should read Smails v McNally – not just the appeal judgment but the judgment of Mr Justice Birss which covered many other aspects of the procedural side of discovery.