Marcus Cooper & Anor v Thameside Construction Company Ltd

Specific disclosure must be confined to documents relevant to the issues and sought in a proportionate manner. The court may make a targeted disclosure order in the exercise of its case-management powers where the underlying issues have been fully argued, even if the application is imperfectly framed. The order should identify the relevant document classes, date range, value threshold and search method. A request extending to broad historical files, extensive categories or an unrealistically short compliance period may be refused or narrowed. Disclosure concerning liability should not duplicate an existing order, and quantum disclosure should be limited to material capable of bearing on the value of the claimed loss.

The defendant applied for specific disclosure in proceedings arising from a flood at the claimants’ property. The claim concerned alleged negligent installation of a plumbing connector and losses pursued by the claimants by way of subrogation for their insurer.

The application sought extensive liability and quantum material, including historical refurbishment records, documents relating to furniture, fixtures and fittings, electronic material, photographs, correspondence and documents affected by redactions or claims to privilege. The court had already directed standard disclosure and a separate trial of liability and quantum. A further disclosure order concerning pleaded liability matters had also been made by Fraser J on 5 November 2015. The central issues were the proper temporal scope and proportionality of any further disclosure, and the extent to which the court should determine requests that had not been precisely formulated in the application.

1. The application was dismissed so far as it concerned liability documents. Those matters fell within the disclosure order made by Fraser J on 5 November 2015. On the material before the court, there was no basis for requiring a search for liability documents created before 1 January 2007.

2. The court held that the requested quantum disclosure had to be controlled by relevance and proportionality. There was no justification for extending the search back to 2004. The appropriate starting date was 1 January 2006. A proposed seven-day search period was unrealistic and disproportionate.

3. Although the application was not appropriately framed in relation to pre-2008 quantum documents, the court exercised its case-management discretion to deal with the issue because it had been fully argued. The order was confined to documents concerning furniture, fixtures and fittings in the property on 18 November 2010, created between 1 January 2006 and 31 December 2007, and showing the cost of items worth more than £1,000 for which a claim was made.

4. The ordered electronic search was to cover relevant hard-copy and electronic sources. The parties were to agree suitable keywords, with any dispute determined on paper. The order also required limited production of specified electronic links and email material, a summary concerning the possible electronic location of historic files, and a structured process for reviewing ten selected redacted or obscured documents by independent counsel where privilege information remained disputed.

5. No order was made in relation to the other specified files. Costs were reserved for written submissions. The court indicated that the defendant’s unnecessary liability application, its improperly made wider quantum request, and its limited and substantially narrowed success would be relevant to costs.