Disclosure of documents referred to in evidence under the Disclosure Pilot Scheme

Michel Wilson and Partners Limited v Emmott and Others [2022] EWHC 730

In an application under the disclosure pilot scheme, the High Court has clarified the circumstances in which a document will be considered to have been "mentioned" in a witness statement and is therefore disclosable under paragraph 21 of Practice Direction 51U (PD51U).

In Michel Wilson and Partners Limited v Emmott and Others [2022] EWHC 730 the Commercial Court rejected the claimant's application for the disclosure of documents which the claimant contended had been "mentioned" in witness statements and exhibits to witness statements. The Court did not consider that a document which has been mentioned in an exhibit to a witness statement should be treated as having been "mentioned" in the witness statement for the purposes of paragraph 21 of PD51U. The court also found that while it may be possible to infer from the contents of a witness statement that a certain document exists, that is not the same as saying there has been a "sufficient direct allusion" to a document. The decision is a salutary reminder that the court will not allow parties to use paragraph 21 of PD51U as a vehicle for seeking wide-ranging disclosure.

The facts

The claimant (MWP) applied for an order under paragraph 21 of PD51U for certain of the defendants to produce, amongst other things, engagement letters, retainers, invoices, and conditional fee agreements which MWP contended had been mentioned in two witness statements (and the documents exhibited to those witness statements) filed in support of an application to strike out the proceedings. The judge described MWP's PD51U application as involving the creation "of a schedule of documents expressed in extravagant terms, and seeks disclosure of those documents which it is submitted are bound to exist, and in reality have been appropriately alluded to in the witness statements concerned".

By way of background, in the proceedings MWP alleges that the first six named defendants dishonestly conspired to make claims for costs orders in certain other proceedings between MWP and the first defendant (Mr Emmott), knowing that the second to sixth defendants were not entitled to payment in respect of the legal services they had provided to Mr Emmott (and therefore no entitlement to an indemnity or to the cost orders arose). Accordingly, MWP sought to recover all sums advanced by way of interim payments on account in respect of the cost orders concerned, as well as a declaration that the defendants were not entitled to recover any costs.

Mr Emmott's former solicitor (the late Mr Robinson) and one of the named defendants who acted as leading counsel to Mr Emmott for significant periods relevant to the dispute (Mr Shepherd QC) each filed witness statements in support of the application to strike out the proceedings.

PD51U

PD51U sets out a pilot scheme for disclosure in the Business and Property Courts (which applies in lieu of CPR 31, save for certain specifically identified provisions in the Practice Direction).

Under paragraph 21.4 of PD51U, the Court may make an order requiring the production of a document which has not already been provided by way of disclosure but is "mentioned" in a statement of case, witness statement, witness summary, affidavit or expert report if the court is satisfied that such an order is reasonable and proportionate as defined in paragraph 6.4 of PD51U.

Paragraph 6.4 of PD51U provides as follows:

In all cases, an order for Extended Disclosure must be reasonable and proportionate having regard to the overriding objective including the following factors—

(1) the nature and complexity of the issues in the proceedings;

(2) the importance of the case, including any non-monetary relief sought;

(3) the likelihood of documents existing that will have probative value in supporting or undermining a party’s claim or defence;

(4) the number of documents involved;

(5) the ease and expense of searching for and retrieval of any particular document (taking into account any limitations on the information available and on the likely accuracy of any costs estimates);

(6) the financial position of each party; and

(7) the need to ensure the case is dealt with expeditiously, fairly and at a proportionate cost.

Paragraph 21.3 of PD51U says that a document is mentioned "where it is referred to, cited in whole, or in part, or there is a direct allusion to it". Accordingly, while PD51U is a self-contained code, such that "some care needs to be exercised in referring to authorities decided under CPR Part 31", because the definition of "mentioned" in paragraph 21.3 replicates the case law in relation to the meaning of that word in CPR 31.14, the judge was of the view that he could safely have regard to the general principles identified by reference to that phrase. Under CPR 31.14(1) a party may inspect a document "mentioned" in a statement of case, witness statement, witness summary or affidavit.

PD51 to continue on a permanent basis

An announcement published on the Judiciary website on 18 July 2022 has confirmed that the Disclosure Pilot Scheme (PD51U) will operate in the Business and Property Courts on a permanent basis from 1 October 2022. The scheme will be in substantially the same form as PD51U, but will be renumbered PD 57AD "Disclosure in the Business and Property Courts".

The appropriate scope of paragraph 21 of PD51U and the judge's reasoning

As regards the principles to be applied in assessing MWP's application, the judge found paragraph 41 of the decision of Warby J in Rudd v Bridle & Anor [2019] Costs LR 1067 (and the cases cited therein) to be particularly instructive:

"The exercise of the power to order inspection under these rules and the meaning of, "mentioned" in this context have been considered in a number of authorities, among them Rubin and Expandable Limited [2008] EWCA Civ 59, [2008] 1WLR 1099 ("Rubin") relied on by both parties to this application. Rix LJ, with whom Jacob LJ and Forbes J agreed, distinguished the case in which a document is, "mentioned" from one where the wording of the statement merely allowed an inference that a document existed. He held at paragraph 22 to 25 that "mention" must mean, "specifically mention" and approved a test of, "direct allusion." He gave examples of forms of expression in which "the making of the document itself is the direct subject matter of the reference and amounts to the document being, "mentioned."" He was referring here to statements such as, "he wrote," or, "I recorded and transcribed our telephone call." Statements such as these were contrasted with assertions such as, "he conveyed," or, "he guaranteed," which Rix LJ characterised as references to transactions, from which it might be inferred that a document had come into existence."

Relying on a "relatively obscurely expressed" note to CPR 31.14 in the White Book, MWP submitted that where a witness statement refers to or attaches another document, and the other document contains a reference to yet further documents, the recipient of the witness statement is entitled to call not merely for documents mentioned in the body of the witness statement, but for any document that happens to be mentioned in any document attached to, or otherwise mentioned in the witness statement, subject only to the reasonableness and proportionality requirement identified in paragraph 21.4 of the practice direction. In rejecting MWP's argument, the judge described this construction of CPR 31.14 and, by extension, paragraph 21 of PD51U as "extravagant". The judge said at [19]:

In my judgment that is not a construction which I consider to be either reasonable or appropriate to adopt. This rule is concerned with identifying documents which can fairly be said to be relied upon by the party whose statement of case, witness statement, witness summary, or affidavit is under consideration, as being part of his, her or its evidence in either support of or opposition to whatever application is material. Even allowing for the constraints imposed by the requirements of reasonableness and proportionality, the notion that it is, in principle, open to a party to seek the disclosure of any document that happens to be mentioned anywhere in the body of a document itself mentioned in a witness statement, or attached to it, opens up the prospect of a wide-ranging search for documents which may trigger, in particular cases, a search for many thousands of documents, which will needlessly increase cost, increase delay, and trigger all of the problems that the overriding objective is designed to address and avoid.

The judge found that while CPR 31.14 and paragraph 21 of PD51U enable a party to inspect any document which has been exhibited to an affidavit, the judge did not consider that a document which has been mentioned in an attachment to a witness statement should be treated as having been mentioned in the witness statement for the purposes of paragraph 21 of PD51U. The judge noted that to reach such a conclusion would open up the possibility that any document mentioned in any document attached to a witness statement would thereby become disclosable.

Accordingly, the judge refused to order disclosure of contracts for services between Mr Robinson and Mr Shepherd QC which had been mentioned in a draft bankruptcy petition exhibited to Mr Shepherd QC's witness statement. The judge noted that ordering the requested disclosure would be "contrary to principle, because it could not be said of such a document that it was one being relied upon by the person whose witness statement is under consideration, as part and parcel of that person's evidence".

As regards whether certain documents had been "mentioned" in the two witness statements concerned, the judge found that references to, for example, Mr Emmott retaining Mr Robinson's law firm for certain periods of time, and Mr Shepherd QC's "instruction as counsel" did not satisfy the requirements of the "mention" of a written contract of retainer. Whilst it could be inferred from the contents of the witness statements that various written letters of retainer existed, the judge found that "it is not in any way the same thing as saying… there has been a sufficient direct allusion to such a document".

As regards the role of paragraph 6.4 of PD51U (excerpted above) in assessing MWP's application, the judge noted that it is necessary to assess reasonableness and proportionality in the "relevant procedural context". The present case involved an interlocutory application to strike out the proceedings which had been set down for a two-day hearing such that the approach to MWP's application may be "a rather more focused and acute one than would otherwise be appropriate". The judge considered sub-paragraph 3 (the likelihood of documents existing that have probative value), sub-paragraph 4 (the number of documents sought) and sub-paragraph 7 (the need to ensure the case is dealt with expeditiously, fairly and at proportionate cost) to be particularly relevant in the circumstances.

The full judgment is available here.

MWP's application for permission to appeal

The judge refused MWP's application for permission to appeal. In his reasons for refusing permission, the judge acknowledged that the degree to which (if at all) documents referred to in documents attached to witness statements should themselves be the subject of disclosure by reason of being impliedly mentioned, was arguably, a "novel point". However, the judge decided that there was no realistic prospect of the Court of Appeal reaching the conclusion that a document mentioned in a document attached to a witness statement has been "sufficiently mentioned" for the purposes of the rule. In any event, the judge had found that ordering the requested disclosure was neither reasonable nor proportionate. The judge's reasons for refusing permission to appeal can be found here.