Montpellier Estates Ltd v Leeds City Council

Disclosure is a continuing process and part of case management. The court may revisit an earlier procedural order where circumstances have changed or its practical consequences become clearer. Proportionality must be assessed by reference to cost, likely evidential value, relevance, the scope of the search and the effect on the trial timetable. A staged search may be appropriate where the parties have conflicting estimates of the likely documents. Disclosure concerning non-party advisers depends on control and must be closely targeted. The court may require further particulars where a central allegation is insufficiently clear for the opposing party to prepare its evidence.

These proceedings concerned a procurement competition for a proposed Leeds Arena. Montpellier Estates Ltd alleged that Leeds City Council had conducted the competition unfairly and had induced its participation by fraudulent misrepresentations. The applications concerned security for costs, specific disclosure, searches for electronic documents, deleted data, document preservation, and further information under CPR 18.1. The court also considered whether searches should be undertaken on the computers of Montpellier’s professional advisers and how an earlier disclosure order made by Simon J should operate.

1. Earlier disclosure order and proportionality. Disclosure under the CPR is a continuing process and part of case management. It is therefore open to the court to revisit an earlier procedural order. The court was not able to resolve the conflicting estimates of the number of “loose” documents on the defendant’s server. A staged process was consequently ordered: the data was to be loaded onto an appropriate review system, searched using the agreed keywords, and the parties were then to consider a proportionate refinement of the search.
2. The fact that emails, hard-copy documents and material from computers had already been disclosed did not remove the need to address the server material. Parties must consider the feasibility, cost and proportionality of searches at an early stage. A search may be limited where its likely cost is disproportionate to the prospect of revealing worthwhile material, but that assessment required a more reliable evidential basis than was presently available.
3. Material held by professional advisers. Communications between the claimant’s advisers were potentially relevant to whether representations had been made, the claimant’s understanding of them, and whether its bid was viable and represented value for money. Nevertheless, no immediate order was made. There was insufficient evidence concerning the claimant’s control of the advisers’ systems, the proposed search was wide and costly, and it risked imperilling the trial timetable. The parties were encouraged to discuss a targeted and proportionate search, and the defendant could in principle seek third-party disclosure.
4. Further information and preservation. The claimant was required to identify the documents and paragraphs relied upon for its case concerning normalisation and risk adjustment. No order was required concerning the alleged conspiracy because the claimant confirmed that no such claim was presently advanced. A disclosure affidavit was unnecessary; the defendant’s witness statement could address document preservation and the recovery of deleted data.
5. Orders were made for searches of deleted data and missing computers, inspection of documents mentioned in statements of case, quantum documents, explanations for redactions, missing pages and financing documents relating to the LA Bowl site.

The judgment records a prior two-day hearing before Simon J in January 2012 concerning security for costs and disclosure. The present judgment determined further pre-trial applications and gave consequential directions.