Harrison & Anor v Halliwell Landau (A Firm)

To set aside a consent order for material non-disclosure, an applicant must establish both a duty to disclose and a breach of that duty. The undisclosed material must also have had a material effect on the outcome. Under Civil Procedure Rules 1998, rules 31.6, 31.7 and 31.8 operate together: the extended scope of rule 31.8 remains subject to the reasonable-search qualification in rule 31.7. An appellate court will not interfere with reasonable-search findings or fact-sensitive disclosure conclusions without clear grounds. Permission to appeal requires a real prospect of success.

Mr and Mrs Harrison sought permission to appeal from the refusal by His Honour Judge Eccles QC, sitting as a deputy High Court judge, to set aside a consent order compromising proceedings between them and their former solicitors, Halliwell Landau. They relied on duress and alleged non-disclosure of a skeleton argument and other documents. The judge rejected duress and held that, although the skeleton argument was in principle disclosable, no relevant duty to disclose had been breached and the necessary materiality was not established.

The proposed appeal raised the scope and breach of disclosure duties under Civil Procedure Rules 1998, including the effect of a reasonable search and the significance of documents later produced to the court. The central issue was whether the proposed grounds had a real prospect of success.

1. Application refused. There was no real prospect of successfully appealing the High Court judgment, notwithstanding an arguable issue about whether a cross-appeal had been required in the earlier costs appeal and whether the skeleton argument might therefore have been material.
2. For a claim to set aside a consent order based on material non-disclosure, the applicant had to establish both that the other party owed a duty to disclose the relevant documents and that the documents would have had a material effect on the outcome. The judge’s findings on the alleged duties and their breach were decisive.
3. The court accepted the conclusion that there was no solicitor-client duty to disclose the skeleton argument when it was served. The document had been in Halliwell Landau’s possession only briefly. Under rules 31.6, 31.7 and 31.8 of the Civil Procedure Rules 1998, rule 31.8 extended the category of documents potentially within the disclosure obligation but remained subject to rule 31.7’s reasonable-search requirement. The documents were in principle disclosable, but the search was reasonable and there was no breach of standard disclosure.
4. The judge was likewise entitled to find that Halliwell Landau had made a reasonable search when the box of documents was produced at Mr Moger’s direction. That conclusion was particularly fact-sensitive and disclosed no proper basis for appellate interference.
5. The findings on witness honesty, reliability, possession and reasonable search were findings to which the trial judge was entitled to come. In the absence of clear, cogent new evidence which could not have been produced at trial, the appellate court could not properly disturb them. Permission to appeal was therefore refused.

• Court of Appeal (Civil Division): permission to appeal was refused on 18 August 2004.
• High Court of Justice, Queen’s Bench Division: His Honour Judge Eccles QC, sitting as a deputy High Court judge, refused the application to set aside the consent order on 24 May 2004.