Canary Riverside Estate Management Ltd v Circus Apartments Ltd

Specific disclosure must be confined to carefully defined and proportionate searches for documents falling within the disclosure obligations. The court must focus on the pleaded issues rather than a loose concept of relevance. Under CPR 31.12, further searches may be ordered where the existing disclosure exercise was inadequate or where documents within standard disclosure have not been properly searched for. A company may make its disclosure statement through an appropriate officer or agent who has responsibility for, and access to, the relevant documents. Redaction is permissible where the concealed material does not relate to matters in question, unless the court can conclude that the disclosure evidence must be wrong.

The judgment concerned cross-applications for specific disclosure in proceedings arising from a long lease of residential property. The claimant landlord alleged breaches concerning use of the premises, planning requirements and alienation, and sought declarations preparatory to forfeiture. The defendant tenant counterclaimed concerning waiver and the alleged unreasonable withholding or delay of consent to an assignment and underletting.

The defendant sought further searches by the claimant concerning knowledge of the alleged breaches, waiver, the consent applications and the claimant’s reasons for refusing consent. The claimant sought wide-ranging disclosure from the defendant, including documents concerning the property, its occupation and the proposed transactions.

1. Disposition. The claimant’s application for specific disclosure was refused save that the court would hear further submissions concerning disclosure of evidence of rent actually received. The defendant’s application was granted in substance, with limited amendments to the proposed keyword searches.
2. Standard disclosure is governed by the documents described in CPR 31.6. The word “relevant” is only shorthand and must not replace the precise statutory wording. An application under CPR 31.12 requires a carefully defined and reasonable search, together with a good reason where the documents sought fall outside standard disclosure. The court must consider the overriding objective and proportionality.
3. The claimant’s broad requests were not sufficiently connected with the pleaded issues. Requests directed to the defendant’s internal motives, historic arrangements, credibility material, wide correspondence and alleged side agreements were therefore refused. The court accepted the defendant’s evidence that its disclosure statement had been made by an appropriate person with access to the relevant records.
4. By contrast, the defendant identified categories directly related to the claimant’s knowledge of the alleged breaches, waiver, and the reasons for refusing consent. The claimant’s disclosure statement showed that its searches had been materially limited. It had not adequately searched relevant electronic material, historical records or documents held by managing agents, and its keyword searches were not sufficiently structured.
5. The further searches were proportionate despite the anticipated burden. The proposed Boolean searches were designed to narrow the exercise, and the draft order contained a mechanism for amendment or return to court if the results proved unmanageable. Documents held by agents were within the claimant’s disclosure obligations where the claimant had power to call for them. A disclosure statement by an appropriate officer or agent satisfied CPR 31.10(7) and Practice Direction 31A paragraph 4.3.

The judgment records an earlier procedural judgment in the same proceedings at [2018] EWHC 1376. This judgment determined the parties’ cross-applications for specific disclosure.