Revenue And Customs v IGE USA Investments Ltd & Ors

Under CPR PD 51U, an Issue for Disclosure is not confined to an issue pleaded in the statements of case. It is sufficient that the issue is a key issue which must be determined by reference to contemporaneous documents for a fair resolution of the proceedings.

A List of Issues for Disclosure is a procedural tool, not a jurisdictional precondition to an order under paragraph 18.1. The court must have an existing order for Extended Disclosure, and the additional disclosure must relate to a particular Issue for Disclosure. Any variation must be necessary for the just disposal of the proceedings and reasonable and proportionate.

GE companies appealed against a decision of Deputy Master Nurse dated 2 June 2020 refusing an application for specific disclosure of documents held by HMRC’s Fraud Investigation Service. The application was made under paragraph 18.1 of CPR PD 51U in connection with HMRC’s proposed amendment of its claim to allege fraud.

The Deputy Master held that paragraph 18.1 could not be used because the relevant issues were not identifiable from the statements of case and no List of Issues for Disclosure had been agreed or approved. The appeal concerned whether those conclusions deprived the court of jurisdiction. If jurisdiction existed, the court also had to decide whether disclosure should be ordered.

1. Appeal allowed. The court had jurisdiction under paragraph 18.1 of CPR PD 51U to order additional disclosure.
2. “Issues for Disclosure” under paragraph 7.3 are key issues in dispute which the parties consider will need to be determined by reference to contemporaneous documents for a fair resolution of the proceedings. The concept is not limited to issues appearing on the face of the statements of case. Jurisdiction, service and security for costs may provide examples of issues arising within the proceedings in that wider sense.
3. The decision in Rome v Punjab National Bank [1989] 2 All ER 136 supported that approach. Disclosure may relate to an issue arising within the action even though it is not part of the underlying pleaded claim.
4. “Issues for Disclosure” and the “List of Issues for Disclosure” are distinct. The List is a mechanism for identifying and organising Issues for Disclosure. Paragraph 18.1 does not make an agreed or approved List a condition of jurisdiction. The essential requirements are an existing order for Extended Disclosure and additional disclosure relating to a particular Issue for Disclosure.
5. The court was not bound to follow the contrary conclusion in Lonestar Communications Corporation LLC v Kaye [2020] EWHC 1890 (Comm) that a non-pleaded issue could not be an Issue for Disclosure.
6. Under paragraph 18.2, the proposed disclosure had to be necessary for the just disposal of the proceedings and reasonable and proportionate. Those requirements were satisfied. The claim involved approximately £650 million and the proposed amendment alleged fraud, making the documents potentially important. HMRC had already searched for and collated them, so compliance would impose little additional cost or difficulty.
7. An order for disclosure was therefore made under paragraph 18 of the Pilot Scheme.

• High Court (Chancery Division): Appeal from the decision of Deputy Master Nurse dated 2 June 2020. The jurisdictional finding was reversed and disclosure was ordered.