London Borough of Bromley v Heckel

Disclosure cannot be ordered against a defendant who credibly states that the documents are not in his possession, custody or control unless there is material justifying the court in going behind that evidence. A claimant may issue proceedings to protect limitation where it can formulate a claim in outline, even if it cannot yet plead it fully. An extension of time for serving Particulars of Claim remains discretionary and must be justified by prompt and effective conduct. A claimant who issues proceedings late, makes an over-wide disclosure application, and delays pursuing it is unlikely to establish good reason for an extension.

The claimant alleged that the defendant, a project manager, was responsible for defects in a prefabricated children’s centre. It sought disclosure of the defendant’s engagement documents and construction contracts, although the defendant maintained that the engagement was oral and that he did not possess the contracts.

The claimant had issued a claim form but had not served Particulars of Claim. It applied for disclosure and for an extension of time, linked to production of the requested documents. The court considered whether disclosure should be ordered, whether issuing the claim form was an abuse of process, and whether time for service should be extended.

1. Disclosure. The disclosure application was dismissed. The defendant and his solicitors had clearly stated that there were no written terms of engagement and that he did not possess the building contracts. There was no material justifying the court in going behind that evidence or ordering disclosure of documents he said he did not have. The application was also inappropriate in its original, extremely wide form.
2. Abuse of process. The court applied the approach in Nomura International plc v Granada Group Ltd [2008] Bus LR 1. Issuing a claim form merely to stop time running, when the claimant cannot identify the essence of the proposed claim, may constitute an abuse. Here, however, the claimant could formulate a claim against the project manager without sight of a written retainer. Issuing the claim form was therefore not itself an abuse.
3. Extension of time. The application was considered under the Overriding Objective because it was made before the time for service expired. The claimant had known for a substantial period that the defendant disputed possessing the documents and asserted that his engagement was oral. Its evidence lacked an adequate statement of truth and failed to explain the basis of key assertions. The application was issued late, pursued dilatorily, and should never have been made.
4. The court adopted and applied the guidance in Lincolnshire County Council v Mouchel Business Services Ltd [2014] EWHC 352 (TCC): a claimant issuing proceedings late must act promptly and effectively, and absent sound reasons should serve within four months or comply with the court’s directions. No good reason for an extension was shown. The extension application was refused.
5. The judge made tentative observations that a project manager is ordinarily concerned with co-ordination and administration rather than design, inspection of workmanship, or rectification of defects. Those observations were not necessary to the decision.

First-instance decision. No earlier appellate decision is stated in the judgment.