Claverton Holdings Ltd v Barclays Bank Plc

Specific disclosure of collateral complaints is not justified merely because they may reveal a pattern of alleged misconduct. In civil proceedings, similar-fact evidence must first be provisionally assessed for probative value, assuming the evidence to be true. The court must then decide whether admission would promote justice, having regard to the evidence’s significance, fairness, cost, delay and the risk of satellite litigation. Mere allegations are generally of little probative value where the underlying facts are not proved and would introduce hearsay disputes. Settlements and complaints-handler findings ordinarily do not establish legal liability or particular facts. A disclosure exercise requiring extensive investigation of unrelated transactions may therefore be refused as irrelevant, disproportionate and oppressive.

Claverton Holdings Ltd alleged that Barclays Bank Plc had mis-sold it an interest rate swap through misrepresentations and negligent advice. Before trial, Claverton sought specific disclosure under CPR 31.12 of complaints, regulatory material, proceedings and disciplinary records concerning alleged swap mis-selling by two Barclays employees.

Claverton argued that the documents might support similar-fact evidence. It later limited the request to allegations involving similar oral representations and, ultimately, to matters resulting in a Barclays admission or a finding by the Financial Ombudsman Service. The central issues were whether such material was relevant and admissible, and whether the requested search and disclosure exercise was proportionate.

1. Applicable approach. The court applied the two-stage approach discussed in O’Brien v Chief Constable of South Wales Police [2005] 2 AC 534. First, evidence of collateral matters must be assessed provisionally, assuming it to be true, to determine whether it is probative. Secondly, even if legally admissible, the court must exercise its discretion by weighing its potential significance against fairness, cost, delay, distraction and the risk of satellite litigation.
2. Mere allegations. The fact that other complaints or allegations had been made against the same employees did not itself make mis-selling in the present case more probable. The relevant duties, representations, reliance and causation would remain case-specific. Allegations concerning written communications could not assist. Allegations concerning similar oral statements might have some potential relevance, but only if supported by admissible evidence of the underlying facts.
3. Unproved complaints and findings. Claverton proposed relying on the nature and extent of other allegations without calling evidence to establish them. That would amount to evidence of allegations, and potentially hearsay evidence of the facts alleged, with little probative value. The discussion in O’Brien did not support admission of allegations without calling evidence of the similar facts. Settlements would probably be without admissions of liability. A Financial Ombudsman Service finding would represent the Ombudsman’s view about compensation responsibility, not a binding finding of legal liability or of any particular fact.
4. Proportionality and outcome. The proposed search would require Barclays to investigate many cases, identify allegedly similar facts, and determine whether allegations had been admitted or “found”. That was a fishing expedition. It was wholly disproportionate and oppressive, and risked satellite litigation if Barclays had to explain or challenge the underlying matters. The court was also doubtful that the material would be admitted even if it crossed the threshold of admissibility. The applications for specific disclosure, and consequently for further information, were dismissed.