The Bullring Limited Partnership & Ors v Laing O'Rourke Midlands Ltd

An application for early specific disclosure requires a proper basis for disclosure before close of pleadings, demonstrated by an important or significant benefit from ordering it early. The request must identify a specific class of documents and fall within the probable ambit of CPR Part 31.5.

The court must weigh the value of early disclosure against its costs, practical burden, effect on the timetable, court resources and other court users. The overriding consideration is proportionality and the justice of the individual case. In defects litigation, maintenance records, complaints, reports and investigations may justify early disclosure where they bear materially on defects, limitation or indemnity.

The claimants, developers, owners and leaseholders of the Selfridges building in Birmingham, brought proceedings against the contractor concerning alleged cracking and water ingress. The defendant applied for early specific disclosure of 17 categories of documents, several of which had first been requested 15 months earlier. Some categories had fallen away by the hearing.

The court considered whether the remaining requests, particularly maintenance records and complaints, reports and investigations, justified disclosure before close of pleadings under CPR Part 31.5. The central issue was whether the benefits of early disclosure outweighed the resulting burden in the circumstances of the case.

1. Disposition. The defendant’s application was granted in respect of category 4 and categories 7–9 and 11–14. The court ordered early disclosure and gave the claimants liberty to apply to vary the terms or date of the order if a genuine logistical difficulty emerged.
2. Applicable test. The court adopted an all-the-circumstances approach. It was necessary to consider the overriding objective and the respective consequences of making or refusing the order, and to ask whether the applicant had shown a proper basis for disclosure before close of pleadings. That basis required something important or significant to be achieved by ordering disclosure early. The court referred to Black v Sumitomo [2001] 1 WLR 1562 as the leading authority and starting point.
3. The request had to concern a specific class of documents and fall within the probable ambit of CPR Part 31.5. Relevant considerations included the value of early provision, the importance of the issue, the effect on the utility of the statement of case, costs, the timetable, court time and other court users. Ultimately, the decision turned on proportionality and the justice of the individual case. An out-of-the-ordinary feature was not treated as an additional rigid threshold.
4. Application. Maintenance records were potentially critical because maintenance and cleaning activity might correlate with the alleged damage. Complaints, reports and investigations were relevant to the practical consequences of the defects and to limitation. Complaints made by Selfridges were also relevant to the claimed indemnity. The categories were distinct and capable of being searched separately, the additional burden was not shown to be substantial, and early disclosure would establish a common evidential database and narrow the issues.
5. The claimants had had ample time to assemble their case, and the defendant had sought the documents well before the application. It was therefore unjust to defer disclosure or restrict it to documents supplied to Workman. The court made the order sought, subject to liberty to apply concerning practical compliance.

No appeal is described. The judgment records that the claim was issued on 30 March 2016 and that Edwards-Stuart J made earlier procedural orders concerning a stay and compliance with the TCC pre-action protocol. The present judgment determined the defendant’s application for early specific disclosure.