This case involves an ongoing valuer negligence claim, in which Rosling King LLP act for Webb Resolutions Limited (“Webb”). In October 2013, JV Limited (who are represented by Reynolds Porter Chamberlain – “RPC”) made an application for specific disclosure of 18 wide-ranging categories of documents which included commercially sensitive documents. The Technology and Construction Court dismissed this application as being “speculative” and a “fishing expedition”, awarding Webb costs largely on an indemnity basis.

The Facts

The Court’s Directions ordered disclosure to take place by 27 March 2013 and lending expert reports to be filed by 7 June 2013. Some 8 months after the exchange of disclosure and 5 months after the parties were required to file their lending expert’s reports, JV Limited issued an application for specific disclosure in relation to 18 wide-ranging categories of documents. The documents sought included full copies of Webb’s Mortgage Sale Agreements and evidence of any due diligence carried out in relation to Webb’s purchase of portfolios of loans. A large proportion of the documents sought by JV Limited, however, were documents that Webb had already confirmed were not within its control.

JV Limited submitted inter alia that disclosure of these documents were necessary so that its lending expert could finalise his report. In particular, JV Limited contended that such disclosure was directly relevant to the defences it intended to run at trial, namely that Webb’s right to sue JV Limited was void for champerty and that Webb was contributory negligent in purchasing the loans.

Webb challenged the factual and logical basis of JV Limited’s application, arguing that the disclosure already provided was sufficient for the purposes of JV Limited’s defence and that the additional disclosure requested was not directly relevant to the issues to be tried.

The Decision

The Court dismissed JV Limited’s application, holding that the application was entirely speculative and not relevant to the issues to be tried. The Court emphasised that applications for specific disclosure should not be used as a fishing expedition, especially in circumstances where Rosling King LLP had already responded in full to RPC’s previous requests for these categories of disclosure in correspondence.

The Court was particularly aggrieved at JV Limited’s lack of compliance with the Court timetable, highlighting that it was not acceptable for JV Limited to raise the prospect of additional disclosure on the day that expert reports were due to be served. The Court also held that it was not acceptable for JV Limited to delay for some eight months before issuing an application and described the circumstances of JV Limited’s application as “an object lesson in how modern litigation should not be conducted”.

JV Limited were accordingly ordered to pay the majority of Webb’s costs on an indemnity basis to reflect the unacceptable manner in which the additional disclosure was pursued and to file its expert evidence within 14 days or face being debarred from relying on expert evidence at trial.

Commentary

This case serves as a warning to litigants who are contemplating using speculative disclosure applications as a litigation tactic to delay progress. The Court takes a dim view of fishing expeditions and litigants face the risk of adverse costs orders should they choose to make such applications.

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