Agents' Mutual Ltd v Gascoigne Halman Ltd (t/a Gascoigne Halman) & Anor

Applications to vary or supplement an Extended Disclosure order must be assessed under the correct provision of the Disclosure Pilot. Where the existing order may not have been adequately complied with, the court may make further orders if they are reasonable and proportionate. Where compliant disclosure is sought to be varied, the applicant must also show that variation is necessary for the just disposal of the proceedings. Keyword searches are a first-stage means of reducing an unmanageable document universe to one capable of manual review. They need not capture every relevant document. The court must assess whether the proposed search is reasonable and proportionate, balancing its likely benefit against the burden of reviewing irrelevant documents. Electronic search methodology should ordinarily be developed cooperatively before manual review begins.

Agents’ Mutual Limited brought proceedings concerning competition and non-competition issues against Gascoigne Halman Limited and Connells Limited. The competition issues had previously been determined by the Competition Appeal Tribunal and the Court of Appeal, while the remaining issues were due for trial in the Chancery Division.

Agents’ Mutual applied for extended disclosure, specific disclosure and additional searches. It relied principally on CPR 51 PD U §§17 and 18, alleging deficiencies in the defendants’ keyword searches and seeking a fresh search. The central questions were whether the application concerned inadequate compliance or variation of an existing order, and whether the requested relief was reasonable, proportionate and, where required, necessary for the just disposal of the proceedings.

1. Application dismissed. Neither the requirements of CPR 51 PD U §17 nor those of CPR 51 PD U §18 were met. The application was properly characterised as one under §18 because Agents’ Mutual had not shown that the defendants had failed, or might have failed, adequately to comply with the existing Extended Disclosure order. The higher §18 test therefore applied. Even under §17, the application would have failed because the proposed order was not reasonable or proportionate.
2. CPR 51 PD U §17 addresses inadequate compliance with an Extended Disclosure order. The court may make appropriate further orders where the order sought is reasonable and proportionate. CPR 51 PD U §18 addresses variation of an order despite compliance. It additionally requires proof that variation is necessary for the just disposal of the proceedings.
3. The defendants’ disclosure universe exceeded two million documents and had been reduced by date and keyword parameters to about 30,000 documents for manual review. The fact that relatively few documents were ultimately disclosed did not itself establish defective disclosure. Nor did the fact that a hypothetical relevant document would not have been captured by the searches.
4. The purpose of keyword parameters is to create a manageable corpus for manual review, not to capture every relevant or potentially relevant document. The court must consider proportionality, including the likely benefit of an additional keyword and the burden of manually reviewing irrelevant documents. The proposed alternative searches did not pass the threshold of showing that they would produce a better outcome.
5. The court was concerned that the parties had not discussed or agreed search methodology and terms before implementation. Although that failure did not affect the result in this case, future electronic disclosure searches should be developed through iterative cooperation between the parties before manual review, because the electronic search determines the scope of later, more intensive review.

• Competition Appeal Tribunal: The competition issues were determined in [2017] CAT 15.
• Court of Appeal: The Competition Appeal Tribunal’s judgment was affirmed in [2019] EWCA Civ 24.
• High Court (Chancery Division): The present application for additional and/or extended disclosure was dismissed.