Omni Laboratories Inc v Eden Energy Ltd

Pre-trial applications should be managed proportionately and should not ordinarily be attached to a pre-trial review without sufficient hearing time. Further disclosure will not be ordered where searches already undertaken are proportionate, the additional exercise is likely to yield largely irrelevant material, or compliance would amount to a fishing expedition. A party may rely on experienced solicitors’ evidence that redacted material is both irrelevant and commercially sensitive, provided that commercially sensitive material is not redacted merely for that reason. Applications to strike out immaterial or technically inadmissible witness-statement material should generally be dealt with efficiently at trial unless an earlier determination is justified.

The claimant sought payment for drilling and geotechnical services provided in connection with gas-content analysis and permeability testing. The defendant advanced a substantial counterclaim, alleging that the work was deficient and that the claimant had wrongly concluded that the site was unsuitable for development.

At a pre-trial review, the defendant pursued an application for specific disclosure and sought to strike out material in the claimant’s witness statements. The court considered whether further searches, examination of electronic data, production of technical documents and disclosure of unredacted notes were justified, and whether the witness-statement application could be heard at that stage.

1. Case-management principle. It was inappropriate to use a pre-trial review as a vehicle for important additional applications without adequate allocated time. Practitioners should issue applications with specific hearing times. Exceptional circumstances may justify a different course, but none existed here.
2. Permeability documents. The claimant had refined an initial electronic search producing approximately 40,000 documents to about 20,000 documents, and had searched those documents using additional keywords and custodians. Requiring a manual review of the remaining material, estimated at 70 to 100 lever-arch files, would be disproportionate and was unlikely to identify relevant documents.
3. Electronic and technical material. The claimant had disclosed everything recoverable from the relevant hard drive. Requiring further investigation of inaccessible material would be disproportionate and would amount to a fishing expedition. The requests for field notes, emails and individual packer specifications could not be taken further because the evidence showed that no additional relevant documents existed or were available.
4. Redactions. Redaction was justified where material was both irrelevant and commercially sensitive. The judge accepted the evidence of the claimant’s experienced solicitors that the redacted parts of the handwritten notes satisfied both requirements.
5. The application for further disclosure was dismissed. The application to strike out parts of the witness statements was adjourned to the first day of trial. The judge encouraged serious consideration of abandoning it, since immaterial or technically inadmissible matters could usually be addressed efficiently during the trial.