Burnden Holdings (UK) Ltd v Fielding & Anor

Under CPR 31.14, a party may inspect a document mentioned in a witness statement only where the statement makes a direct allusion to specific documents, including specific documents identified compendiously. A generic reference to files, records or papers does not engage the rule. Specific disclosure before the ordinary disclosure stage must be justified by the overriding objective, the procedural timetable and the parties’ equality of arms. The court may order production of a single document central to the pleaded case while refusing broad categories amounting to a fishing expedition.

The claimant, a company in liquidation, brought proceedings concerning an allegedly unlawful dividend. The defendants applied for inspection of documents mentioned in the liquidator’s witness statement under CPR 31.14(1)(b), and for specific disclosure under CPR 31.12.

The defence timetable had been postponed until after determination of a pending summary judgment application on limitation. The court had to decide whether the documents were sufficiently mentioned for inspection, and whether early specific disclosure was justified before the ordinary disclosure stage.

1. The application was dismissed insofar as it sought inspection under CPR 31.14, save for documents whose production was conceded. “Mentioned” requires a direct allusion to specific documents. A compendious description can suffice, but only where it identifies specific documents on which the witness purports to rely. A general reference to records, files, books or papers does not trigger inspection.

2. The court explained and applied Expandable Ltd v Rubin [2008] EWCA Civ 59 and Dubai Bank Ltd v Galadari (No 2) [1990] 1 WLR 731. It also considered the approach to compendious references discussed through Smith v Harris (1883) 48 LT 869.

3. Early specific disclosure of the Tenons file was refused. The court applied the overriding objective and considered that disclosure before service of the defence and determination of the summary judgment application would be inconsistent with the agreed timetable and impose unnecessary expense.

4. Specific disclosure was ordered for the minute of the claimant’s board meeting on 29 August 2007. It was a single document central to the pleaded case, and equality of arms justified production. Disclosure of all other 2007 and 2008 board minutes was refused as an unjustified fishing expedition.

5. The order was to take effect on restoration of the claimant to the register. The defendants were ordered to pay 80 per cent of the claimant’s costs of the application.

First-instance interim application. The judgment refers to an earlier judgment in the same litigation, [2014] EWHC 1908 (Ch), which dismissed the defendants’ application for security for costs.