Philip Donnelly & Ors v Weybridge Construction Ltd

Specific disclosure must be confined to documents relevant to pleaded issues and proportionate to the needs of the case. A party may be required to provide targeted information about prior dealings where it bears on an issue such as authority or agency, but wide-ranging disclosure is oppressive. Standard disclosure under CPR 31.6 extends to documents supporting or adversely affecting another party’s case, even where the disclosing party has no direct litigation link with that party. Litigation privilege arises when litigation is reasonably in prospect. Documents created after that point will ordinarily be protected if the privilege requirements are met.

The claim concerned deposits paid for apartments in a development known as The Icon. The purchasers alleged breach of contract concerning the standard and specification of the completed apartments. The developer sought specific disclosure from the purchasers and from Part 20 defendants involved in the marketing joint venture.

The applications concerned prior dealings, sales-night documents, changes to the specification, financial difficulties affecting completion, communications with solicitors, alleged instructions, and documents relating to the joint venture. The central issues were relevance, proportionality, privilege, and the scope of standard disclosure under CPR 31.6.

1. Specific disclosure against the purchasers. The requests for documents concerning all prior property dealings were too wide and oppressive. Nevertheless, proportionate information was required identifying, for the two years before 8 November 2004, relationships concerning property or property development between each purchaser and the Part 20 defendants, together with a brief description of the capacity in which the relevant person or entity acted. The broader applications were refused.
2. Disclosure concerning the purchasers’ alleged inability to complete was allowed in a narrowed form. The relevant category was correspondence concerning financial difficulties affecting completion of the sale contracts from 1 January 2004 onwards. Wider requests, including documents dating from October 2003, were disproportionate.
3. Written instructions from the purchasers to Brohoon & Associates concerning the refutation of completion notices were disclosable. Brohoon & Associates were not acting as lawyers for this purpose, and litigation privilege had not yet arisen. By contrast, instructions to Mr Carley were protected. Litigation privilege arose when litigation became reasonably in prospect. On the evidence, that occurred on 6 May 2004, when the completion notices were received: see [1984] B.C.L.C. 151.
4. Specific disclosure against the Part 20 defendants. The court declined to determine the disputed agency relationship at an interlocutory disclosure hearing. The issue required full evidence at trial. Most sales-night requests were irrelevant or already addressed by disclosure, subject to confirmation by solicitors’ letter.
5. Under CPR 31.6, standard disclosure extends to documents supporting or adversely affecting any party’s case in the litigation, whether or not the disclosing party has a direct claim or defence relationship with that party. The Part 20 defendants therefore had to disclose documents concerning the specification and changes to it, even if those documents were irrelevant to the issues between the Part 20 defendants and the developer.
6. The remaining categories were refused or limited in accordance with relevance, proportionality and privilege. The parties’ agreed or narrowed disclosure was ordered where appropriate. Costs were to be dealt with separately.