Note the point towards the end – I am not seeking mere anecdotes about bad disclosure conduct but judgments in which aggressive or abusive disclosure – not just cock-up or incompetence – was punished
An interesting question came my way from Zander Goss @zandergoss, whose Twitter bio describes him as “Future pupil barrister; UCL LLM student”. It originated in the form of a tweet to Gordon Exall @CivilLitTweet who is the Oracle on all things relating to the Civil Procedure Rules with his Civil Litigation Brief.
Gordon Exall passed his question to me.
The question as originally put was this:
It is narrowly framed – not about whether one jurisdiction requires broader discovery / disclosure than the other but about the prevalence of tactical abuse and “exploitation” of discovery.
This was my reply:
Zander Goss in turn referred to me to my own article on Gem Environmental v Tower Hamlets headed Application for early specific disclosure was driven by hope of tactical advantage
Gem Environmental was about a particular form of abuse, an early specific disclosure application in a procurement case. I said this:
The opening paragraph of Coulson J’s judgment begins, unpromisingly for the claimant, by saying “The underlying point of principle is the claimant’s potential misapplication – even abuse – of the approach to early specific disclosure in procurement cases” in [a procurement case called] Roche. If the judge refers to “abuse” in the first line, it’s barely worth waiting for the conclusion.
The details do not particularly matter for the point I want to make and, in any event, the judgment is only 23 paragraphs long. The judge quoted the defendant’s counsel as saying that “the application was needlessly aggressive, misconceived, unnecessary and unjustified” and added that “it appeared to be driven by the claimant’s desire to achieve some form of tactical advantage”.
Zander Goss’s original question, as I read it, was not just about procedural abuse but also about what is referred to in the US as “document dumping” and the “find the ball” approach to discovery, where an unfiltered mass of documents is thrown at the other side who are then expected to find the documents which matter (I will avoid the word “relevant” for the moment). The typical scenario involves a large defendant dropping enormous volumes of documents on a small plaintiff who is then compelled to wade through them.
The purist answer in England and Wales is the one I gave: a document is only disclosable if it is supportive of or adverse to the case of the giver or any other party (Rule 31.6 and the appeal in Shah v HSBC Private Bank); a case managing judge ought to head off excessive disclosure at the CMC by investigating what is proportionate (and proportionality trumps pretty well everything); a party who needlessly runs up the costs of opponents should be penalised in costs (see my article Vector Investments: successful claimant made to pay for unhelpful disclosure for a case where a winning claimant was ordered to pay £20,000 towards the costs wasted by the manner in which it gave disclosure).
What about the practice though? One can envisage circumstances where a big client, indifferent to costs, instructs aggressive solicitors to be aggressive in order to (or having the effect of) running up huge costs for the opponents, and where the judge fails to impose order.
Have I missed any cases on this? I am not seeking a stream of anecdotes from abused parties who feel that they have been wronged by their opponents, bullied by the opposing solicitors, and left to swing in the breeze by the court, nor am I after cases in which disclosure was expanded following an application; I am not just seeking cock-ups by lawyers who don’t know the rules or understand the principles – we will be here all week if those are brought into it.
I would like to know of judgments in which an aggressor was punished or made to redo its disclosure because it was too large or unfocused and where the court found (as with the application in Gem Environmental) that this was pursuant to a deliberate policy of tactical aggression. I am also interested in cases which pick up on what the Court of Appeal said in Denton (I wrote about that here) about those who take unnecessary procedural points.
If I get any useful answers, I may come back to this subject.