There is no substitute for reading the rules relating to disclosure, whether those expressly so – Rule 31 and its practice directions – or those with wider effect elsewhere in the rules. What happens, though, when something in the rules appears to conflict with common sense or with the duty to be proportionate? Judicial discretion goes only so far.
Back in July 2017, the excellent Gordon Exall wrote in his Civil Litigation Brief about a case in which he had been involved called Powell v Watford Borough Council. His article was headed Inadequate disclosure leads to defence being struck out – eventually.
I in turn wrote about the case in an article headed Disclosure obligations include the form and substance of list as well as its completeness from a purely disclosure angle (Gordon Exall’s remit is rather wider than mine).
I missed Gordon Exall’s later post of September 2017 (Non-compliance with peremptory orders – the full judgment in Powell v Watford Borough Council which links to and summarises the full judgment of Mr Justice Jay on the disclosure / relief from sanctions aspect of that case (let’s agree to ignore the procedural complications here – don’t even ask).
The extracts which Gordon Exall gives in his September 2017 post are primarily to do with the form of the disclosure statement, something you may consider an afterthought or an act of purely formal compliance which does not really matter. You would be wrong, as this judgment shows.
The first paragraphs quoted by Gordon Exall set out what the relevant disclosure duties are, both as to the steps which must be taken and (crucially) as to the wording which certifies what those steps were. In this case, the steps themselves were inadequate; the implication is that you can do the actual job properly but fail because you do not properly describe what you did – “properly” meaning in accordance with the specific wording of the rules. I will leave you to read that bit for yourself.
Reading Jay J’s words (always a pleasure, incidentally, as is the opportunity to reduce Mr Justice Jay to “Jay J”), I was reminded of the title of Auberon Waugh’s autobiography “Will this do?”, with its implication that one might be able to get away with less than 100% of the input or effort which is strictly required. In these days when proportionality rules over all, is there not a case for doing a good enough job to get by, without excessive focus on precision?
Jay J addresses this with a sentence (in paragraph 22) as follows:
I fully understand the point that all of this sounds rather technical, and there may be something in the objection which came from HHJ Harris that a modicum of common sense had to be applied.
That is fine, up to a point (to use a phrase popularised by Auberon Waugh’s father). You pass that point, however, when the terms of a rule require something specific and you offer something which falls short of that. Surely the judge has discretion to waive irregularities? Well yes and no – it depends on the context. We have been here before, and the Court of Appeal has given its view on the ambit of judicial discretion.
Gordon Exall drew Jay J’s attention to the Court of Appeal’s decision in Smailes v McNally & Ors  EWCA Civ 1299 (I give you the full reference and a link because this is another context in which precision matters – like Powell v Watford, the Smailes case, or at least the disclosure aspects of it, had multiple overlapping iterations, with a relief from sanctions application taking place after the determination of the main issues on disclosure).
Jay J said of the Smailes appeal:
That is authority for the proposition (if authority were required) that compliance with a court order is not a matter for the discretion for the lower court. It is really a matter of law for any subsequent court considering the issue. To use a term which is quite fashionably deployed nowadays, which I do not shrink from using, compliance or non-compliance is binary. Either there has been compliance or there has not been.
I wrote about the appeal in Smailes v McNally in an article headed Disclosure consequences of failure to comply with a clear Unless order. Smailes is important because, as I put it in my article, “procedural defects can trump merits” at least in the context of relief from sanctions. A £50 million claim was lost entirely, without any discussion on the merits, because of procedural defects to do with disclosure.
This focus on precision in reading the rules came up in another Court of Appeal judgment, that of Shah & Anor v HSBC Private Bank Ltd  EWCA Civ 1154, where the point at issue was whether a specific document ought to be disclosed. That led to a discussion about the precise interpretation of Rule 31.6, which provides a definition well short of “relevant”. You get the flavour of it from these extracts:
So the question is: is this material either material which adversely affects the bank’s case or material which supports the claimants’ case? [Para 36]
It is notable that the word “relevant” does not appear in the rule. Moreover the obligation to make standard disclosure is confined “only” to the listed categories of document. [Para 25]
While it may be convenient to use “relevant” as a shorthand for documents that must be disclosed, in cases of dispute it is important to stick with the carefully chosen wording of the rule. Thus in my judgment the first of the questions ventilated before the judge was not quite the right question”. [Para 25]
In other words, broad ideas of what was disclosable, adequate most of the time, fell away in the face of precise argument about interpretation of the rule.
This is the same point as Jay J made with his reference to points which sound “rather technical” where “a modicum of common sense” might produce a different answer. It might – but not if that flies in the face of the precise wording of a rule.
Such precision brings with it the danger that parties will stand on fine points of interpretation in lieu of being proportionate. A specific objection based on precise wording may make hard law in the particular case, but does not does not supplant the general obligation to be proportionate. As I said at the end of my Smailes article:
All the arguments about the scope of a reasonable search of Rule 31.7 did not precisely apply here, but they are vital both to those who wish properly to reduce the scope of disclosure on proportionality grounds and to those who would challenge the scope of another. Don’t let this judgment, with its “almost unique” facts, put you off using the rules, and Rule 31.7 in particular, to narrow the ambit of disclosure.
Proportionality rules, OK? But, as Lewison LJ said in Smailes, “in cases of dispute it is important to stick with the carefully chosen wording of the rule”. Not for nothing is my motto “RTFR” (Read The F* Rules).