Hankin v Barrington & Ors

Specific disclosure applications should identify the documents or classes sought with precision and be supported by evidence addressing relevance and possession. Those formal requirements ordinarily apply, but the court retains jurisdiction to depart from them where justice and the overriding objective require it. Oral clarification at the hearing is permissible only with great caution, where the documents can still be defined with sufficient particularity and the opposing party is treated justly. A case-management discretion to order disclosure will not be disturbed on appeal absent an error of principle or a decision outside the available range. At the permission stage, the court may also consider whether an appeal from a disclosure case-management decision is sufficiently significant to justify its costs.

The claimant brought a personal injury claim against the first and second defendants and Saracens Limited arising from an alleged incident during a team trip and subsequent medical treatment. A Master ordered Saracens to provide outstanding medical records and training and personnel documents under CPR 31.12.

Saracens challenged the training and personnel disclosure order, arguing that the application had not specified the documents, was unsupported by adequate evidence, and gave insufficient notice of the case advanced at the hearing. The renewal application concerned whether the Master had jurisdiction to formulate the categories orally, whether the order was sufficiently precise and relevant, and whether permission to appeal should be granted.

1. Permission refused. The Master’s order was a case-management decision exercising a disclosure discretion. There was no real prospect that an appeal would succeed and no other compelling reason to grant permission.
2. Applications for specific disclosure should comply with Practice Direction 31PD. The application notice should specify the order sought, and the supporting evidence should explain the grounds, relevance and basis for believing that the documents are within the disclosing party’s possession. The claimant’s application and evidence were materially deficient in those respects.
3. Those deficiencies did not deprive the Master of jurisdiction. In an appropriate case, the court may receive clarification at the hearing and reformulate the categories of documents without insisting on further written evidence. This power must be used sparingly. It is available only where the documents are identified with sufficient particularity and the procedure remains fair and consistent with the overriding objective.
4. The Master was entitled to conclude that the specified training and appraisal records were likely to exist in the ordinary course of affairs at a professional rugby club and were likely to be in Saracens’ possession. The later evidence that some categories did not exist did not invalidate the belief when the order was made. The training material was capable of assisting the assessment of the claimant’s career and was not irrelevant.
5. The order fell within the range of reasonable case-management decisions and involved no error of principle. Specific disclosure is a case-management decision for the purposes of Practice Direction 52A, paragraph 4.6. The court could therefore consider whether the issue justified the costs of an appeal. It did not: disclosure had apparently been given, any future allegation of breach or postponement was hypothetical, and the case raised no important new point of principle.

The oral renewal of the application for permission to appeal was refused.

• High Court (Queen’s Bench Division): Master Yoxall ordered specific disclosure on 30 January 2020 under CPR 31.12.
• High Court (Queen’s Bench Division): Mr Justice Freedman refused the renewed application for permission to appeal from that case-management decision.