Getting documents: early specific disclosure

In Bullring Limited Partnership v Laing O’Rourke Midlands Limited [2016] EWHC 3092 (TCC), the Technology and Construction Court ordered specific disclosure (before the defence had been served) of several categories of documents. Simon Hargeaves QC of Keating Chambers, who acted for the defendant/applicant, considers the decision and the benefits of obtaining early specific disclosure during proceedings.

What are the practical implications of this case?

There are several ways to get documents from the other side:

• contractual rights (eg injunction, agency and specific performance)
• procedural rights (pre-action disclosure, disclosure in aid of another dispute resolution process, early (specific) disclosure, standard disclosure and third party disclosure)

In this case the court defined the test to be applied for early specific disclosure; ie applying for specific disclosure during proceedings but ahead of the usual time for disclosure.

Early specific disclosure is underused. It should be given some consideration as the jurisdiction and test are simple, lots of proceedings are stayed after protective claim forms, documents are often required to plead defences satisfactorily and there is no costs penalty like for pre-action disclosure.

What was the background?

The defendant had been requesting documents which only the claimant had and which the defendant needed in order to plead its defences. Specifically, the documents were:

• maintenance records, which went to a liability defence to the defects claim (i.e. the maintenance records would show whether maintenance, or a lack of maintenance, caused or contributed to the defects)
• historic complaints and investigations, which went to a limitation defence (i.e. when physical damage first occurred (primary limitation in negligence) and when the ‘date of knowledge’ (second limitation in negligence, under s14A of the Limitation Act 1980).

These requests had been going on for 18 months. The claim was a very stale one, issued at the very end of the limitation period. The claimant had made use of an agreed standstill, and then a stay after protective proceedings were issued, in order to improve the presentation of its case. The defendant had not been afforded the same opportunity to improve its own case, due to the claimant’s refusal to provide the documents.

What did the court decide?

The court had the jurisdiction to order disclosure under CPR 31.12, which provides that ‘The court may make an order for specific disclosure or specific inspection’.

The court formulated the test for whether disclosure should be given as:

Taking into account the overriding objective and the respective consequences of making or not making the order, whether, in all the circumstances of the case, the applicant has demonstrated that there is a proper basis for early disclosure as opposed to disclosure after close of pleadings."

It added that:

for a proper basis to be identified, there does need to be something important or significant which can be achieved by ordering early disclosure."

The court decided that the defendant was entitled to early disclosure of the categories of documents requested, for reasons including the following:

• it was not an exercise that would have to be done twice. It was just being done early, and any costs would be modest
• it would not be a difficult task
• the exercise of collecting the documents ought to have been done many years ago
• now was a good opportunity in the proceedings for the disclosure work to be done (due to a pause in the proceedings for other reasons)
• the documents would narrow the issues in dispute
• it would allow the defendant an equivalent benefit to the lengthy period of evidence gathering enjoyed by the claimant

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