Edward Scriven v Lee Scriven & Others

Specific disclosure must be assessed by reference to relevance, proportionality, cost and the overriding objective. A party and its solicitors must take an active and properly supervised role in identifying, searching for and disclosing documents within the scope of standard disclosure. The duty extends to documents in an agent’s possession or control, but not ordinarily to the agent’s own working papers. Where disclosure is incomplete, the court may require further searches, production of documents, or a sufficiently detailed disclosure statement confirming the searches undertaken. Even where a request is reasonable and well-founded, specific disclosure may be refused if the order would be disproportionate in the circumstances or would imperil the procedural timetable. Costs may be apportioned to reflect the claimant’s degree of success on the individual requests.

The claimant applied for specific disclosure from the fourth defendant, a professional firm, in ongoing Chancery proceedings. The application concerned 58 requests, of which 41 remained live. The claimant alleged serious deficiencies in the fourth defendant’s disclosure and inadequate supervision by its solicitors. The fourth defendant contended that searches had been carried out, that several requests were too broad, and that further orders would be disproportionate given the proximity of trial.

The court considered whether the requests complied with CPR 31.12, whether further disclosure or disclosure statements were justified, and how proportionality, cost and the overriding objective affected each request.

1. Application and governing principles. The application complied with CPR 31.12, but that did not mean that every request should be ordered. Standard disclosure and the continuing duty of disclosure were governed by CPR 31.5, CPR 31.6 and CPR 31.11. The court also applied the principles concerning solicitors’ responsibility for disclosure described in CMCS Common Market Commercial Services v Taylor [2011] EWHC 324 (Ch).
2. Control of disclosure. The fourth defendant and its solicitors had taken an unduly restrictive and insufficiently organised approach. Solicitors must take an active role in managing disclosure and must provide appropriate guidance and supervision. The evidence showed serious gaps, justifying further searches and formal assurances in disclosure statements.
3. Agents and control. Under CPR 31.8, disclosure extends to a party’s documents in the possession of an agent, but not to the agent’s own working papers. The issue whether the Highstone companies acted as agents therefore required consideration under that rule.
4. Individual requests and proportionality. The court allowed a substantial number of requests, including requests for further documents and detailed disclosure statements. Other requests were refused because they had been adequately addressed, were too broad, or were disproportionate having regard to cost, timing and the imminent trial. The court restricted item 29 to documents relating to the alleged Temple Court Ltd loan and excluded the date of an email from item 3.
5. Disposition and costs. The application was substantially successful but not wholly so. The claimant was the winner, and the fourth defendant was ordered to pay two-thirds of the claimant’s costs, subject to detailed assessment. Permission to appeal was refused. The ordered disclosure was to be delivered by 23 December 2013, with liberty to apply.