BCG Brokers LP & Ors v Tradition (UK) Ltd & Ors

For standard disclosure, relevance is determined by the pleaded issues. A court must apply the disclosure test in CPR 31.6 and cannot order disclosure merely to promote transparency, reassure a party, or dispel suspicions. An appellate court may intervene in a case-management decision where the judge has misunderstood the pleadings or applied an irrelevant consideration, so that the decision is plainly wrong or outside the generous ambit of reasonable disagreement.

The appeals arose from disclosure orders made by Master Davison in two related claims concerning alleged misuse of confidential information and recruitment activity. The Master required the defendants to remove redactions from recruitment reports so that the names of further brokers connected with the claimants or associated companies would be disclosed.

The central issues were whether the pleadings alleged that key revenue producers had been targeted with an accuracy consistent only with misuse of confidential information, whether disclosure could be ordered to avoid suspicions, and whether the Master’s discretionary case-management decision was plainly wrong.

1. Appeal allowed. The order requiring removal of the redactions was reversed.
2. Under CPR 31.6, relevance for standard disclosure is judged by reference to the pleadings. The pleaded allegation that Tradition had targeted key revenue producers did not allege that the targeting was unlawful, nor that it could only be explained by access to confidential information. The surrounding pleadings and the claims in the related action did not enlarge that allegation.
3. The further information identified six individuals and did not state that further names were expected to emerge on disclosure. The fact that those names had been disclosed did not amount to a concession that all other redacted names were relevant. The overlap between the two claims also provided no pleaded basis for disclosure of additional names.
4. The Master had therefore mischaracterised the pleaded case. His decision was made on a plainly wrong basis and, insofar as it involved discretion, exceeded the generous ambit within which reasonable disagreement was possible. The appellate court was entitled to intervene, applying the principles stated in Fiddes v Channel 4 Television Corp [2010] EWCA Civ 516 and Canadian Imperial Bank of Commerce v Beck [2009] EWCA Civ 619.
5. Disclosure cannot be ordered merely because withholding it might create a sense of injustice, encourage transparency, or leave a party nursing suspicions about the redacted material. If the information satisfies the disclosure test, it must be disclosed subject to privilege. If it does not, there is no discretionary power to order disclosure for those purposes.
6. The third ground, concerning employees of associated companies, did not require separate determination. The same conclusion applied by parity of reasoning. The redactions were not required to be removed.

• High Court (Queen’s Bench Division): Appeal from disclosure orders made by Master Davison allowed. The order requiring removal of the redactions was reversed.