Ventra Investments Ltd v Bank Of Scotland Plc

Applications for amendments or additional disclosure must be determined under the overriding objective. A late amendment which jeopardises a fixed trial date places a heavy burden on the applicant to justify its timing and demonstrate why justice requires permission.

Under the disclosure pilot, additional disclosure must be necessary for the just disposal of the proceedings and reasonable and proportionate. The court should take a pragmatic approach where information asymmetry might otherwise prevent access to central evidence.

Documents held by a third party are not within a litigant’s control merely because the litigant might obtain them on request. Control ordinarily requires possession, a presently enforceable right to possession, or evidence of an existing general consent to inspect and copy the documents.

The claimant property company brought claims against its former bank concerning interest-rate derivatives and the sale of its property portfolio during an administrative receivership. Before trial, it sought extensive additional disclosure, further information and permission to re-amend its particulars of claim. The proposed amendments included LIBOR-related claims concerning earlier derivative transactions and a claim to rescind later transactions.

The claimant also applied to vacate the trial date so that the proposed amendments and disclosure could be accommodated. The principal questions were whether the documents sought were within the bank’s control, whether the proposed disclosure and amendments were necessary and proportionate, and whether justice required the fixed trial date to be lost.

1. The applications succeeded only in part, and the application to adjourn the trial was dismissed. Permission was granted to plead rescission of the Replacement Trades. Permission to extend the LIBOR misrepresentation claim to the Original Trades was refused. Several limited categories of additional disclosure and one request for further information were granted, but the remaining requests were dismissed.

2. Additional disclosure under Practice Direction 51U had to be necessary for the just disposal of the proceedings and reasonable and proportionate. Any practical distinction between applications under paragraphs 17.1 and 18.1 made no difference here. The court had to consider the fixed trial date, the burden of additional work and the information asymmetry between the parties. The pilot required a pragmatic and flexible balance; it was not intended to prevent a claimant from obtaining central documentary evidence needed to formulate and prove a properly arguable case.

3. The files held by Grainger and Dickinson Dees were not within the bank’s control. The Umbrella Management Agreement did not, by itself, make Grainger the bank’s agent. It did not confer sufficient authority to affect the bank’s relations with third parties and did not create a fiduciary relationship. The agreement’s specific document provisions conferred no presently enforceable right to obtain the files for disclosure. Nor was there evidence of an existing general consent permitting the bank to inspect and copy them. A mere possibility that a third party might comply with a request was insufficient.

4. The late Original Trades amendments would require substantial new disclosure and factual and expert evidence, jeopardising the trial date. The claimant’s explanation for not advancing them earlier was unconvincing. It failed to discharge the heavy burden of showing why justice required permission. By contrast, the rescission amendments concerning the Replacement Trades created only limited and manageable prejudice and could be accommodated without losing the trial date.

5. Targeted additional disclosure concerning the bank’s relationship with the asset manager, its internal governance and specified custodians was necessary and proportionate. Broader or speculative requests were refused where they amounted to fishing, duplicated earlier searches or were unlikely to produce sufficiently important material. Further information was ordered only where the request was concise, targeted and directed to information available to the relevant decision-maker.

6. None of the orders granted justified vacating the trial. Parties and the court had a legitimate expectation that trial fixtures would be kept. The trial remained fixed for 15 January 2020.

This was a first-instance case-management decision. Earlier in the proceedings, parts of the claimant’s pleading had been struck out by a Deputy High Court Judge. The original trial date was subsequently vacated by consent after the defendant was unable to complete disclosure, and the trial was relisted for 15 January 2020.