Specific disclosure applications in commercial litigation

This article gives an overview of specific disclosure applications in commercial litigation. These applications can help a party in litigation to obtain key documents which the other side have in their possession but which they are purposefully withholding because they know that they damage their case. The article outlines factors which might assist with an application. It finishes by looking at a recent case of Maher v Maher [2019] EWHC 3613 (Ch) as an example of when such an application failed. The area is complex and taking early legal advice is crucial.

If the other side are withholding a document, what can I do?

If another party has failed to provide a crucial document or refuses to do so unjustly during commercial litigation, it is possible to make a “specific disclosure” application to the Court.

If the Court considers it is just, it can order the other side to provide copy documents against their will.

The Court can order disclosure outright by order or can impose that the other party carries out a specific search, and provide the results, attested to with a witness statement with a statement of truth.

If the other party fails to meet the order, the court has the power potentially to strike out its case.

If the other party provides a witness statement which misleads the court, this can be a contempt of court and lead to a fine or imprisonment.

How do I make a specific disclosure application?

A specific disclosure application is made under the provisions of CPR 23 and CPR 31.12 of the Civil Procedure Rules (the “CPR”), rules which govern commercial litigation.

Applications are made using an N244 application notice. They will require a witness statement, outline of the issues and history, and an application fee. Each court has different requirements so specific guidance and legal advice is sensible. The court may require a face to face hearing before it makes a decision.

When are specific disclosure applications usually made?

The Court has the power to make a specific disclosure application at any time during litigation, but these are most commonly granted after the exchange of Lists of documents has occurred, where one party is refusing either to search for documents properly or alleging documents don’t exist, or alleging that documents do exist, but are not discloseable because they are privileged.

Some people presume that the earlier you make a specific disclosure application the better, but if an application is made too early or late in the litigation process, then it may fail.

There are alternative disclosure applications you can make prior to commencing proceedings, for example Pre-Action Disclosure Applications under CPR 31.16, or Data Subject Access Requests which may be simpler and preferable.

What factors do the court look at in specific disclosure applications?

The Civil Procedure Rules which govern commercial litigation, do not set out a list of particular requirements and the Court looks to all circumstances, including the below:

• The applicant will have to show what efforts they have made to obtain the document amicably. It helps to write first to the opposition and give them sufficient time to comply.
• The applicant will have to show why the other party has refused to comply and why this was unreasonable. If a party suspects the objections are artificial, it helps to evidence why. Alleging fraud without proof will not be tolerated by the court, however.
• The Court considers how crucial the documents are likely to be to the issues in dispute. It looks at how onerous, time consuming or expensive it might be for the other party to comply.
• The Court considers whether there has been any delay in making the application and whether compliance is likely to interfere with the litigation process unduly.
• If the request is for a narrow body of documents, or specific documents, or via a staged process then the application may be more likely to succeed.

When might a specific disclosure application fail?

An application may fail when, for example:

a) The application is made too early or too late in the litigation process;
b) There is unnecessary delay;
c) The request is too onerous to comply with and could cause the other party to incur excessive costs or lose too much time;
d) The claim can be determined fairly without the document;
e) The application is simply a fishing expedition to see if there is further wrongdoing.

There is risk an unsuccessful application will result in liability to pay your own and the other side’s wasted legal costs. It may also risk the Court’s criticism on conduct and credibility.

Do all courts allow specific disclosure?

Not all courts allow specific disclosure. For example the process under CPR 31.12 doesn’t apply in small claims under a value of £10,000. The point at which applications are made are different in the Fast Track cases.

CPR 31 is not technically applicable to cases under the new Disclosure Pilot Scheme, at the Business and Property Courts although the Court has powers under PD51U paragraph 18 to order something similar.

Recent case

The recent case of Maher v Maher [2019] EWHC 3613 (Ch) highlighted some tension between specific disclosure applications involving the new Disclosure Pilot Scheme and cases commenced prior to when it came into effect, and outlines some factors when a specific disclosure application may fail.

The application failed for various reasons, principally due to its lateness in proceedings and delay. Additionally the Court confirmed it is for the Claimant to show that the disclosure sought is reasonable and proportionate, and that the expense and efforts for the Defendant to comply are not unduly onerous. Regrettably the application here did fail.

The Judge said “[the case]…does not require every stone to be turned over, still less for a whole pile of more stones to be imported from a neighbouring quarry”.

Clearly then, whilst specific disclosure applications can be a very powerful tool, which could potentially secure a critical document that ultimately wins the case, there is a lot to consider; they are not always suitable and taking early legal advice is key.

If you have a high value complex commercial or contractual dispute, contact our Dispute Resolution lawyers at Hodge Jones & Allen on 0330 822 3451 to see how we can help.