Maher v Maher & Anor

Applications for specific disclosure under the Disclosure Pilot must be assessed by reference to reasonableness and proportionality, the overriding objective and the factors in paragraph 6.4 of Practice Direction 51U: The Disclosure Pilot for Business and Property Courts. The court should focus on the key issues in dispute and adopt a pragmatic approach to the practical realities of the litigation. Disclosure should not become a tactic or generate collateral inquiries shortly before trial. Delay, limited likely probative value, the burden of reviewing and redacting documents, privacy considerations and the risk of complicating the proceedings may together justify refusing disclosure, even where the documents might assist one party’s case.

The claimant and defendants were co-trustees of a family discretionary settlement. The claimant sought the defendants’ removal as trustees and relief concerning the proposed sale of trust assets. He applied for specific disclosure of the defendants’ personal bank statements, alleging that they might show whether company funds had been used to pay their legal costs.

The underlying proceedings had begun by Part 8 claim form and were ordered to continue as though commenced under Part 7. The trial was listed to begin approximately seven weeks after the disclosure hearing. The central issue was whether disclosure of five years of personal bank statements was reasonable and proportionate at that stage.

1. The application for specific disclosure was dismissed. The court exercised its case-management powers in furtherance of the overriding objective.

2. The court applied the principles identified in White Winston Select Asset Funds LLC v Mahon [2019] EWHC 1014 (Ch). The Disclosure Pilot applied even though standard disclosure had been given before the Pilot came into force. The application was governed by paragraphs 6.4, 17.1 and 17.2 of Practice Direction 51U: The Disclosure Pilot for Business and Property Courts, rather than the more general approach in paragraph 5.4 of Practice Direction 31A.

3. The court derived particular assistance from UTB LLC v Sheffield United Ltd [2019] EWHC 914 (Ch); [2019] Bus LR 1500. The Pilot represented a culture change rather than a re-writing of CPR Part 31. Disclosure had to be directed to defined, key issues and not every disputed matter. Each factor in paragraph 6.4 had to be given weight.

4. The court also applied the pragmatic and flexible approach explained in Ventra Investments Limited v Bank of Scotland Plc [2019] EWHC 2058 (Comm). The court had to strike a practical balance by deciding what additional disclosure, if any, was necessary for the just disposal of the proceedings, without ignoring practical realities.

5. Although the bank statements might reveal whether the defendants had personally funded their solicitors or had received corresponding payments from the company, substantial further work would have been required. This included reviewing five years of statements, analysing cash payments, obtaining company statements, matching transactions, redacting private material and resolving possible challenges to the redactions. The likely limited probative value, the four-month delay in making the application, the imminence of trial, the risk of creating side issues and the privacy of the second defendant’s wife made disclosure unreasonable and disproportionate.

The judgment was a first-instance decision on an application made in ongoing proceedings. The underlying claim had been issued by Part 8 claim form on 19 September 2016 and later ordered to continue as though commenced under Part 7. No lower-court judgment was identified.