Equipe Regeneration Ltd v Higgins Construction Ltd & Ors

Extensions of time for serving Particulars of Claim should promote a properly pleaded case while allowing reasonable time for investigation and any Pre-Action Protocol process. The court may impose practical conditions, including a deadline for a protocol letter, but should avoid an unless order where it is likely to generate procedural disputes. Contractual co-operation obligations are confined by their wording. An obligation to provide assistance reasonably incidental to the performance of a sub-contract does not ordinarily require disclosure sought primarily to advance litigation. Once proceedings have begun, an application for such disclosure is not pre-action disclosure; it must satisfy the requirements for specific disclosure under CPR r. 31.12.

The claimant brought protective proceedings arising from a 2007 social housing PFI project and sought relief in two applications. It requested an extension of time for serving Particulars of Claim while investigating alleged defects and pursuing information from various sources. It also sought disclosure from the first and second defendants under contractual co-operation provisions and, alternatively, under the court’s disclosure powers.

The extension was opposed initially but became substantially uncontroversial, subject to conditions. The disclosure application was confined to two categories of documents. The issues were whether further time should be granted, whether the contractual provisions required the requested information, and whether specific disclosure should be ordered at that stage.

1. Extension of time. The extension for service of the Particulars of Claim was granted until 11 March 2021. The claimant was required to use best endeavours to serve a Pre-Action Protocol letter by 5 pm on 8 January 2021. An unless order was not made because it risked inducing procedural wrangling. Any further extension application was, in principle, to be made at least 14 days before the deadline and was reserved to the judge.
2. Contractual assistance. The relevant Interface Agreement provisions required assistance and support reasonably incidental to the proper performance of a sub-contract. The requested information was principally sought to formulate and pursue the claimant’s litigation, rather than for operational maintenance purposes. The contractual obligation therefore did not establish an entitlement to the disclosure sought.
3. Specific disclosure. Proceedings had already been commenced and the usual time for disclosure had not arrived. The application therefore fell to be considered, if at all, as an application for specific disclosure under CPR r. 31.12. Relevance is assessed by reference to the pleadings and factual issues in dispute, with a stronger case for disclosure where particular documents are likely to determine the claim. The claimant did not establish that the documents were required at that stage. Some documents appeared not to exist or had already been supplied, and neither category was necessary to prepare the protocol letter or pleadings.
4. The disclosure application was refused, without deciding whether disclosure might become appropriate later. The court noted that the first and second defendants might usefully identify documentation already uploaded. The costs of all parties were ordered to be costs in the case, to be assessed on the standard basis.

First-instance decision. The judgment itself does not state any prior appellate decision.