Byers & Ors v Samba Financial Group

Under standard disclosure, documents must materially affect a party’s case or support another party’s case. Earlier expert reports prepared for different proceedings, addressing only overlapping general principles, are not ordinarily disclosable merely because they may assist cross-examination. Material inconsistency in the expert’s opinion is required where the reports do not address the same specific legal issues. Specific disclosure or variation of an extended disclosure order must also be necessary for the just disposal of the proceedings and reasonable and proportionate. A party may still question an expert by reference to relevant extracts from another judgment or other admissible material.

The defendant applied shortly before trial for disclosure and inspection of expert reports prepared by Professor Chibli Mallat in related Cayman Islands proceedings. Professor Mallat was also the claimants’ expert on Saudi Arabian law in this action.

The reports overlapped on general issues, including the recognition of property rights and the distinction between proprietary and personal claims, but did not address the specific Saudi Arabian priorities issue to be tried in this action. The application relied principally on paragraphs 17 and 18 of CPR 51UPD, and alternatively on the disclosure rules.

1. Application dismissed. The Cayman reports were relevant in a broad sense, but relevance alone did not satisfy the applicable disclosure tests.
2. Under CPR rule 31.6, standard disclosure extends to documents on which a party relies, documents adversely affecting its own or another party’s case, documents supporting another party’s case, and documents required by a practice direction. It does not extend to documents that are merely relevant in a broad sense.
3. Earlier expert reports prepared in different claims, addressing some of the same general material but not the same specific legal issues, will not ordinarily adversely affect a party’s case or support another party’s case in the absence of a material inconsistency of opinion. Differences of expression, emphasis or omission generally go only to credit.
4. That conclusion was reinforced by the risk that disclosure would distract from the distinct Saudi Arabian law issue and generate collateral inquiry into evidence given in the Cayman proceedings. The detailed expert evidence already before the court covered the relevant general principles.
5. The court declined to treat L’Oreal S.A. v Bellure NV as compelling. That decision involved evidence of prior inconsistency and a different evidential context, including the absence of competing expert evidence.
6. Paragraph 17 of CPR 51UPD could not justify an order because there was no sufficient evidence of a material inconsistent statement. Paragraph 18 likewise did not justify varying the disclosure order: production was not necessary for the just disposal of the claim, although it would not itself have been disproportionate.
7. Samba remained entitled to question Professor Mallat about relevant evidence given in the Cayman proceedings, using extracts from the judgment or otherwise, subject to the ordinary limits on relevance and credit evidence.