Vilca & 21 Ors v Xstrata Ltd & Anor

On reviewing an unperfected costs order, the court may reconsider whether the order was unjust, but a party is not entitled to a second attempt merely because it later reassesses the result. Where applications succeed on some issues and fail on others, an order that costs be costs in the case may fairly reflect the overall outcome. Disclosure orders may be widened where additional search terms are reasonably relevant, even if their use is disputed, and may require coherent information about available backups and searches so that further disclosure can be conducted proportionately.

This supplemental judgment concerned six issues arising after the court’s earlier disclosure judgment in the same proceedings, [2016] EWHC 389 (QB). The parties had substantially agreed the form of order, but disputed the scope of keyword searches, information to be provided before expert discussions, the addition of a custodian, the locations to be searched for hard-copy documents, the wording concerning disclosure under the Civil Procedure Rules, and the allocation of costs.

The central questions were whether the disclosure order should be expanded, what further procedural directions were proportionate, and whether the court should review its unperfected order that the application costs be costs in the case.

1. Keyword searches. The search of backup tapes was widened to include identified code words and acronyms, together with a residual category covering other code words or acronyms used during the relevant period to refer to participants, events or anticipated events forming part of the protests or their response. The court treated the evidence that some terms were used only for radio communications as an assertion requiring caution. Searching the terms was reasonably relevant and imposed no principled or substantial objection.
2. Backup and file-server disclosure. The court directed investigation of the September Lima Backup and the August Antapaccay Backup. Although one backup might omit a week, that was not a sufficient reason to reject the exercise, particularly because relevant material was more likely to arise earlier. The claimants could apply for further disclosure if the investigation proved inadequate.
3. Custodian and premises. The proposed additional wording concerning Mr Sartain and other individuals was not added. The defendants were, however, required to provide signed witness statements with statements of truth identifying where hard-copy searches had been conducted, which premises had been searched and when. Further disclosure remained possible if those statements were unsatisfactory.
4. Costs review. The court accepted that it could review the unperfected costs decision if it appeared unjust or if the circumstances identified in L-B arose. The claimants had not been wholly successful: they had won on some issues, lost on others, and some matters remained unresolved. The original order that costs be costs in the case was therefore fair, and no alteration was made.
5. The agreed wording concerning documents requiring disclosure under Civil Procedure Rules 1998, Rule 31.6, was approved. The possibility of an early trial was left open, subject to resolution of the outstanding issues.

First-instance supplemental judgment arising from the court’s earlier disclosure judgment in the same proceedings: [2016] EWHC 389 (QB).