Palizban v Protech (UK) Ltd

Where litigation disclosure is expected to continue over time, parties should agree an early, regular and intelligible strategy for providing identified categories of documents. Sporadic, unpredictable and disorderly bulk disclosure is not justified merely because it reflects the manner in which a third-party professional agency supplies material. A receiving party may reasonably apply for protective directions where the disclosure creates a real risk of prejudice to expert evidence, even if an extension of time is agreed in principle. Solicitors acting for a litigant remain responsible for managing third-party agents whose conduct affects the litigation and may expose the litigant to costs consequences.

The judgment determined costs arising from the defendant’s application dated 29 August 2019. The application sought variations to directions concerning the exchange of care evidence and the joint care experts’ statement, following substantial and disordered disclosure by the claimant shortly before the relevant deadline. The parties agreed that an extension was required, but disputed whether the defendant needed to issue the application and whether the claimant should pay its costs.

The claimant was a protected party. The disclosure had been assembled and supplied through a care and rehabilitation agency, included previously disclosed and new material, and was difficult to navigate. The central issue was whether the claimant’s disclosure practices justified the defendant’s protective application and a costs order.

1. Application and costs. The defendant had a proper need to issue the application on a protective basis and to reserve the possibility of a case management review. The application was not premature merely because the claimant promptly agreed in principle to extend the expert-evidence timetable.
2. Disclosure standards. Bulk disclosure may be logical in an appropriate case only where the material is not required earlier, disclosure intervals are reasonably frequent, and the parties understand and accept the practice. Sporadic, unpredictable and historic documents supplied en masse are materially different and may cause unjustifiable prejudice.
3. Responsibility for third-party agencies. A professional care or rehabilitation agency providing a fee-paid service should supply documents in an orderly and intelligible manner. The contractual relationship with the claimant does not make the agency’s conduct an unavoidable fact which the opposing party must accommodate.
4. Solicitors’ responsibilities. Solicitors acting for a claimant cannot treat themselves as incidental to the agency’s conduct where poor standards affect the litigation. As officers of the court, they have a reasonable duty to manage and control third-party agents whose conduct has consequential effects. The claimant’s protected-party status did not prevent an appropriate costs order.
5. Case-management practice. Where disclosure will arise in tranches before trial, solicitors should identify and agree an early timetable for cyclical disclosure of defined categories, together with any required format. Such a strategy can be included in the order made at the first case management conference and enforced, if necessary, by application.
6. The claimant was responsible for the predicament created by the August 2019 disclosure. The explanations advanced did not justify the manner of disclosure, and the argument that the defendant’s previous lack of complaint amounted to acceptance was rejected.
7. The claimant was ordered to bear his own costs of the application, pay the defendant’s costs of issuing it and of the witness statement dated 25 October 2019, and pay the defendant’s costs of attending the hearing on 1 November 2019.