Burnden Holdings (UK) Ltd v Fielding & Anor

The court considered an interim application for inspection and specific disclosure brought by the defendants under CPR 31.14(1)(b) and CPR 31.12. The judge analysed the proper scope of CPR 31.14, adopting the test of "direct allusion" or "specific mention" derived from the Court of Appeal authorities (including Rubin and Dubai Bank). He held that mere passing or compendious references to files, records or emails in a witness statement do not engage the right to inspection under CPR 31.14. Applying that principle to the documents mentioned in the liquidator's witness statement, the court dismissed the CPR 31.14 inspection application except insofar as the claimant had already agreed to produce specific identified documents. The court did, however, order specific disclosure of the single board minute for the claimant's directors' meeting of 29 August 2007 as relevant to the claimant's pleaded case; broad requests for other board minutes and for the whole Tenons file were refused as disproportionate or fishing exercises. The judge also addressed practical complications arising from the claimant's dissolution and made directions to preserve rights pending restoration to the register. Costs of the application were awarded in the claimant's favour at 80%.

Background and parties: The claimant, Burnden Holdings (a company in liquidation), sued Mr Gary John Fielding and Mrs Sally Anne Fielding. The defendants applied for inspection and specific disclosure of documents relied on or referred to in the liquidator's witness statement and for wider disclosure of adviser files (Tenons and Addleshaw Goddard). The case followed an earlier interlocutory decision by Mr Justice Norris dismissing the defendants' application for security for costs ([2014] EWHC 1908 (Ch)). A summary judgment application by the defendants on limitation grounds was listed for later hearing.

Nature of application: (i) an application under CPR 31.14(1)(b) for inspection of documents "mentioned in" the liquidator's witness statement; and (ii) a specific disclosure application under CPR 31.12 for three categories of documents, including the Tenons file and board minutes.

Issues framed:

• What is the proper interpretation and scope of CPR 31.14 and when does a document become inspectable because it is "mentioned" in a witness statement?
• Whether the particular passages in the liquidator's witness statement constituted specific mention or direct allusion to documents sufficient to trigger CPR 31.14 inspection.
• Whether specific disclosure of the Tenons file and other classes (including all board minutes for 2007–2008) was justified in advance of standard disclosure and before the summary judgment hearing.

Court's reasoning: The judge followed the Court of Appeal guidance in Expandable Ltd v Rubin and Dubai Bank v Galadari (No 2), adopting the "direct allusion" or "specifically mention" test for CPR 31.14. He held that a generic or passing reference to "records", "files" or "emails" does not amount to specific mention such as to require inspection; otherwise almost all documents could be compelled merely by a witness saying their statement is based on party files. Applying that to the liquidator's witness statement, the court found that most of the references were compendious or passing and did not engage CPR 31.14, save for specific documents the claimant had already agreed to disclose. The judge refused advance specific disclosure of the Tenons file as unnecessary, disproportionate and inconsistent with the parties' agreement to defer service of the defence until after the summary judgment application; he did, however, order disclosure of the single board minute of 29 August 2007 as directly relevant to the claimant's pleaded case and necessary to place the parties on an equal footing. Requests for broad classes of board minutes were dismissed as fishing expeditions. The judge also dealt pragmatically with the claimant's dissolution by accepting the liquidator's undertaking to restore the company and by post-dating orders and extending appeal time to preserve rights pending restoration. Costs were ordered against the applicants on an 80% indemnity basis for this application.

The interim application for inspection under CPR 31.14 was largely dismissed because the liquidator's witness statement contained only passing or compendious references to files and emails rather than "specific mention" or a "direct allusion" to particular documents. Specific disclosure was refused for the Tenons file and broad categories of board minutes, but the court ordered disclosure of the single board minute of 29 August 2007 and of any other documents the claimant had already conceded would be produced. The claimant's practical difficulties from its dissolution were addressed by an undertaking to restore the company and by post-dating orders. Costs were awarded to the claimant at 80% of its costs of the application.

The judgment records an earlier interlocutory decision of Mr Justice Norris in the same litigation dismissing the defendants' application for security for costs: Burnden Holdings (UK) Ltd v Fielding & Anor [2014] EWHC 1908 (Ch). There was also a pending summary judgment application issued by the defendants on 2 May 2014 listed before His Honour Judge Bird on 18 November 2014. The present decision is an ex tempore first instance ruling on an interim disclosure application.