Brearley & Others v Higgs & Sons (a firm)

Applications for additional disclosure under the Business and Property Courts Disclosure Pilot should be determined by reference to necessity for the just disposal of the proceedings and reasonableness and proportionality. The court should focus disclosure on key issues in dispute and require evidence showing a real likelihood that relevant documents exist. Fishing or speculative requests should be refused. The court should be slow to assume that solicitors have failed to conduct disclosure properly, but may require explanatory evidence where concerns have a proper evidential basis. Additional evidence of costs may be proportionate where invoices do not establish that sums were actually incurred.

The claimants brought a professional negligence claim against their former solicitors concerning advice relating to a proposed Jaguar Land Rover dealership. The defendant applied for specific or additional disclosure, including an earlier search date, further searches of social media and text messages, documents from advisers, bank statements, employment information and other material. Several issues were resolved by agreement during the hearing. The court therefore addressed the proper application of Practice Direction 51U to existing proceedings and the reasonableness and proportionality of the remaining disclosure requests.

1. Applicable approach. The order for standard disclosure made before the commencement of the pilot was not disturbed. However, any further disclosure application had to be approached consistently with Practice Direction 51U. The court treated the existing order, for practical purposes, as an order for extended disclosure. The relevant question was whether further disclosure was necessary for the just disposal of the proceedings and reasonable and proportionate, having regard to the factors in paragraph 6.4.
2. Earlier search date. The request to extend searches before 1 February 2014 was refused. The evidence did not establish a sufficient likelihood that relevant documents existed before that date. An earlier search would be speculative and would amount to fishing. The potential relevance of the material, the burden of the exercise, the existing period of search and the defendant’s delay in challenging the date range all weighed against the order.
3. Disclosure processes. The court should be slow to conclude that solicitors had not done their job properly. It was inappropriate to order further disclosure merely in case material already provided or promised later proved insufficient. Given some evidential basis for concern about third-party requests and file review, the agreed solution was a witness statement from a senior solicitor explaining the requests made and the material received, including why only 85 of 2,087 documents had been disclosed as relevant.
4. Other applications. Relevant extracts from the individual claimants’ bank statements were proportionate to verify that claimed costs had actually been incurred. Further searches of social media and text messages were refused because the likely probative yield was insufficient in relation to the burden and proximity to trial. The experts were required to have equal and fair access to underlying financial data. The agreed arrangements for property valuation evidence were approved.
5. The approach was consistent with the principles described in Portman Building Society v Royal Insurance and the application of the pilot explained in UTB v Sheffield United.