Vannin Capital PCC v RBOS Shareholers Action Group Ltd & Ors

Applications to vary an order for Extended Disclosure under the Disclosure Pilot are governed by the specific test in CPR PD 51U, paragraph 18.2. The general approach under CPR 3.1(7), including the exceptional nature of variation applications identified in Tibbles v SIG Plc [2012] 1 WLR 2591, does not apply.

A variation requires proof that it is necessary for the just disposal of the proceedings and reasonable and proportionate. Disclosure searches must be shaped by the scope of the order. Where relevant information is likely to be held in board minutes or hard-copy materials, parties must select custodians and conduct searches capable of locating those documents.

The claimant and the second defendants applied in proceedings concerning funding arrangements for shareholder litigation. The second defendants sought under CPR PD 51U, paragraph 18.1, to remove SG UK from the entities required to provide Extended Disclosure. The claimant sought further searches of board minutes and related materials by the entities identified in Appendix 1 to the Disclosure Review Document.

The court had to determine the applicable test for varying an order made under the Disclosure Pilot, whether SG UK should be excluded, and the proper scope of the further disclosure searches.

1. Applicable variation test. The court rejected the submission that variation of the Disclosure Order was governed by the general principles in CPR 3.1(7) and Tibbles v SIG Plc [2012] 1 WLR 2591. The Disclosure Pilot contains a specific regime. CPR PD 51U, paragraphs 18.1 and 18.2, therefore governs the application. The applicant had to establish that the proposed variation was necessary for the just disposal of the proceedings and was reasonable and proportionate.
2. Exclusion of SG UK refused. The court was not satisfied that removing SG UK from Appendix 1 met that test. The second defendants had agreed at the case management conference that all Corporate Defendants would provide disclosure. Corporate Defendants were materially different from Retail Defendants because they had detailed membership arrangements, received information about the litigation, and were more likely to possess relevant documents. The asserted disclosure costs were insufficiently evidenced, and the court was not persuaded that separate legal advice was necessary for proportionality purposes. The application was dismissed.
3. Further searches ordered. Board minutes, meeting records and documents supplied to or created by boards fell within the agreed disclosure scope. Custodians had to be selected by reference to the scope of disclosure ordered, rather than merely by reference to individuals already identified. Where relevant documents might be held in hard copy, appropriate hard-copy searches were also required. The claimant’s application was granted.
4. Wider committee searches refused. The court declined to extend the order to committees making recommendations to boards. That request sought to reopen the hearing, was outside the original terms of the Disclosure Review Document, and appeared disproportionate and unnecessary. The order was made in the terms originally sought, with two months for completion and rolling provision of documents as they became available. Costs were reserved.