Boygues (UK) Ltd v Sharpfibre Ltd

Cost budgets should be assessed by reference to proportionality and the issues genuinely requiring determination. Where written closing submissions are directed as a contingent cost and were not included in the trial-phase budget, the reasonable additional cost may be allowed.

Disclosure must be confined to material that is relevant and necessary for the fair disposal of the issues. Broad searches for documents relevant only to background or context are not justified where existing issues for disclosure already cover the relevant matters. The court may nevertheless permit a later application for specific documents or classes of documents shown to be relevant.

The claimant sought damages exceeding £1.95 million from the defendant in respect of allegedly defective cladding and insulation installed at a hotel. The defendant brought a contribution claim against the third party architect.

At a case management conference, the court resolved most directions and costs issues. The judgment determined the remaining dispute concerning the claimant’s contingent cost for written closing submissions and the defendant’s requests for disclosure from the third party, including disclosure of narrative documents.

1. Costs. The court had previously reduced the claimant’s proposed costs budget after applying the guidance in CIP Properties Limited v Galliford Try Infrastructure Limited [2015] EWHC 481 (TCC) and GSK Project Management Limited (In Liquidation) v QPR Holdings Limited [2015] EWHC 2274 (TCC). The remaining cost of written closing submissions was not included in the trial-phase budget. The claimant’s proposed contingent cost of £66,000 was therefore allowed in full.
2. Issue 20 disclosure. The third party’s formulation, requiring disclosure of information apparent to the claimant or third party when carrying out assessment functions which suggested that the defendant’s works were contractually non-compliant or did not comply with Revision E, together with its concession as to the searches required, was a reasonable and proportionate approach. In practice, there was unlikely to be a significant difference between that formulation and the defendant’s broader alternative.
3. Narrative documents. Under Civil Procedure Rules 1998, Practice Direction 51U, paragraph 8, an order must specify whether Model D disclosure includes narrative documents. Paragraph 9.6(2) requires the court to address how their exclusion is to be achieved where they are excluded, and Appendix 1, paragraph 1.11 defines them as documents relevant only to background or context and not directly to the issues for disclosure. The court held that the requested width of disclosure would not assist the objective assessment of whether the third party had acted to the standards of a competent professional. Disclosure of narrative documents was refused because it was not necessary for the fair disposal of the issues. A later application for specific documents or classes of documents remained possible if relevance could be shown.