The Dorchester Group Ltd (t/a the Dorchester Collection) v Kier Construction Ltd

An open offer is a package of terms. A party cannot treat part of it as an admission while rejecting the remainder. For judgment under Civil Procedure Rules 1998, r 14.1, an admission must be clear and unequivocal; an offer which merely accepts a proposition for the purposes of settlement is not necessarily a formal admission. Specific disclosure remains confined to the ordered basis of disclosure and must be proportionate, assessed by reference to burden, cost and likely benefit.

The claimant sought declarations and determinations concerning discounts allegedly obtained by the defendant from its mechanical and electrical subcontractor but not disclosed or passed on under the building contract. An adjudicator had identified a discount of £686,290.93. The claimant applied for judgment on an alleged admission in the defendant’s open offer, and for specific disclosure across 14 categories of documents.

The central issues were whether the open offer constituted an admission under r 14.1 of the Civil Procedure Rules 1998, and whether further disclosure was required under the existing order for standard disclosure.

1. The application for judgment on an admission was dismissed. The open offer was a package which the claimant could accept or reject as a whole. It could not be dissected so as to treat one part as an admission while rejecting other terms.

2. The letter did not refer to r 14.1, did not admit the truth of the claimant’s case concerning all undisclosed discounts, and did not address the defendant’s pleaded defence concerning early-payment discounts. It was therefore not a formal admission under r 14.1.

3. An admission on which judgment is sought under r 14.1 must be clear and unequivocal. The claimant’s request for clarification, followed by the defendant’s explanation that no concession had been made, demonstrated that the alleged admission was not clear.

4. Disclosure had been ordered on the standard basis. The court would not impose a wider, Peruvian Guano-type obligation. Specific disclosure nevertheless remained available for documents falling within standard disclosure.

5. Proportionality required consideration of the burden of compliance, the cost of compliance and the likely benefit. The defendant’s excessive expenditure on its own disclosure process did not, by itself, prevent a further order where that expenditure resulted from the way the exercise had been conducted.

6. Specific disclosure was ordered for categories 1 to 4, concerning agreements, reports and account material relating to the discounts, because the documents were potentially important and the order was proportionate. A witness statement was also required concerning those categories and, to a limited extent, category 14. No order was made for categories 8 to 10, 11 or 12, or for the further information sought about the review team.