Morley (t/a Morley Estates) v The Royal Bank of Scotland Plc

For disclosure purposes, a document need not mention the claimant personally. A generic document may be disclosable where it is reasonably likely to illuminate the pleaded allegations or the way the claimant was treated. The relevance test must not be confined to documents concerning the claimant by name.

A party may rely on a witness summary where, on the balance of probabilities, a request for a voluntary statement would have been refused. The court should apply this requirement with rigour, but also with practical realism. Relief from sanctions may be granted for a serious and unjustified delay where the evidence is relevant, the trial can remain fair and orderly, and the prejudice is manageable.

The claimant brought proceedings against his former bank seeking rescission, damages and restitution in respect of agreements concerning the transfer of property assets to a bank subsidiary. He alleged economic duress, intimidation and related breaches of duty, including that the Asset Protection Agency had influenced the bank’s conduct.

Three interlocutory applications were before the court: specific disclosure of documents, permission to rely on witness summaries for two former senior bank employees, and an application by the bank to set aside witness summonses requiring those witnesses to attend trial.

1. Specific disclosure. The court ordered searches and disclosure of relevant documents, including documents concerning the Asset Protection Agency that did not mention the claimant. The relevance test was wider than the bank’s proposed “Morley-specific” approach. Generic documents could illuminate whether the pleaded allegations of influence, conflict, policy departure or wrongdoing were made out. The court also ordered searches for relevant committee minutes and review of specified framework, conflict-management and guidance documents. Unredacted copies were to be available at trial where necessary.
2. Witness summaries. The claimant was “unable to obtain” statements within CPR 32.9(1)(a) where, on the balance of probabilities, a request would have been refused. That conclusion could be reached without an express refusal, having regard to the witnesses’ former senior positions, continuing confidentiality obligations, the likely alignment of their evidence, the bank’s opposition to their attendance and their reaction to service of the summonses. The summaries adequately identified the matters on which the witnesses might be questioned under CPR 32.9.
3. The evidence was potentially relevant notwithstanding that other witnesses would address similar topics. Relevant evidence should generally be admitted where the witnesses and parties could prepare adequately and the trial would not be disrupted.
4. Applying the three-stage approach in Denton, the default was serious and the reasons for delay were unsatisfactory. Nevertheless, the bank had notice of the summaries, the evidence was confined, the trial estimate included the witnesses, and adequate preparation remained possible. Relief from sanctions and permission to rely on the summaries were therefore granted. The decision was not intended to excuse late applications generally.
5. Witness summonses. The court assumed, without deciding, that the bank had standing to seek their discharge. The application was refused. The witnesses’ evidence might be relevant, neither witness had applied to set aside the summons, and the bank should not acquire a de facto property in witnesses by seeking to prevent their attendance.