Barclays Bank Plc v Taberna Europe CDO I Plc & Ors

Standard disclosure is not an automatic default under CPR 31.5(7). The court must select the order that best serves the overriding objective and limits disclosure to what is necessary for the just resolution of the case. An issues-based order may be appropriate, but where the issues require revision or expansion, standard disclosure can be preferable. Such an order should nevertheless be implemented proportionately, with searches confined by reference to the relevant issues, time periods, custodians and other practical limits.

This was a case-management ruling concerning disclosure by Barclays Bank plc in proceedings involving Taberna Europe CDO I plc and others. Barclays proposed disclosure limited to two issues: whether Class A1 Noteholders’ Consent had been given for the disputed swap agreement, and whether Barclays had been aware of or consented to a cash injection. The defendants sought standard disclosure.

The central issue was whether disclosure should be ordered on an issues basis or by reference to the standard-disclosure regime, and how the resulting searches should be confined.

1. Disclosure order. Barclays’ disclosure was not restricted to the two issues originally proposed. The evidence indicated that relevant material might also exist in relation to issues 1.12 and 1.13, and that issue 2.15 might require revision after Barclays’ reply.
2. Choice between disclosure options. CPR 31.5(7), read with the overriding objective and the need to limit disclosure to what is necessary for the just resolution of the case, presents standard disclosure as one of several possible orders rather than an automatic default. The court took account of the approach described by Birss J in Positec Power Tools (Europe) Ltd v Husqvarna AB [2016] EWHC 1061 (Pat).
3. Application. In the circumstances, an issues-based order would have required an expanded and potentially changing definition of the relevant issues. Standard disclosure was therefore preferable. In practice, it would be confined to the significant factual issues presently identified as 1.12, 1.13, 1.14 and 2.15, potentially as revised following the reply.
4. Proportionality. The parties were expected to limit searches substantially by restricting timeframes, custodians, search terms and other practical matters. The substantial value of the claim did not justify an unrestricted or unnecessarily expensive disclosure exercise.
5. Order. Barclays was ordered to give standard disclosure, subject to the practical limitations identified by the court.