Mueller Europe Ltd v Central Roofing (South Wales) Ltd

In substantial litigation, disclosure orders must require a meaningful and effective search. Where electronic disclosure cannot be achieved without specialist expertise, the court may require a suitably qualified information technology consultant to conduct the search on a party’s behalf. Such an order is permissible where it is necessary to secure compliance with the order and proportionate to the value and issues in the case.

Documents held by a party’s insurers may be within the party’s control where the party could call for their inspection. Specific disclosure may therefore be ordered where there is an arguable evidential basis for believing that relevant documents are, or were, held by the insurers. Orders should remain focused on identified documents and should not become unnecessarily wide-ranging searches.

The claimant sought interlocutory orders in proceedings arising from a factory fire and a claim for approximately £23 million. The reserved applications concerned the adequacy of the defendant’s electronic disclosure and documents generated by an independent fire assessor instructed by the defendant’s insurers.

The defendant had searched retained electronic material itself, but the claimant’s evidence indicated that the searches might not have accessed the contents of the relevant media. The claimant also sought the assessor’s notes and a witness statement held, or believed to be held, by the insurers. The central questions were whether further specific disclosure should be ordered, whether a specialist consultant could be required to conduct an electronic search, and whether documents held by insurers were within the defendant’s control.

1. Electronic disclosure. The defendant had not complied effectively with an earlier order requiring searches of backup tapes and CDs. Although its managing director had carried out searches and provided a statement explaining them, the evidence showed that he lacked the expertise necessary to perform a meaningful search of the electronic material.
2. The court had jurisdiction under CPR Part 31 and Practice Direction 31B to order an electronic search by a suitably qualified third party. Otherwise, the court might make an order with which the party could not realistically comply. The proposed exercise was proportionate, given its estimated cost of £1,200 compared with the claim of approximately £23 million.
3. The court therefore ordered searches of the defendant’s CDs, hard drives and network drives by a suitably qualified information technology consultant. Costs were reserved pending assessment of whether the exercise produced further documents.
4. Insurer-held documents. Under CPR 31.8, the relevant question was whether documents were within the defendant’s control, not merely whether they were physically in its possession. Documents held by the defendant’s insurers were within its control if the defendant could call for their inspection.
5. There was an arguable and persuasive evidential basis for believing that the fire assessor’s notes had been given to the insurers, and that the insurers held a copy of the policy-holder’s witness statement. Specific disclosure of those documents, together with a statement describing the searches undertaken, was ordered. Wider requests for all other material were refused as too broad. Any privilege claim could be raised after the documents had been listed.