JKL v VBN

Specific disclosure must be confined to documents necessary to deal fairly and proportionately with the issues. Disclosure directed only to a witness’s credibility is exceptional and requires necessity for the achievement of justice in the particular case. A party’s statement that all disclosable documents have been produced is ordinarily dispositive, although compelling contrary evidence may justify further disclosure. Applications for further disclosure must identify a proper evidential and procedural basis, including evidence that documents are within the respondent’s control. Where proposed medical issues have not been pleaded or supported by the necessary expert evidence, disclosure of medical records may be premature.

The claimant brought a claim for threatened misuse of private information and blackmail arising from allegations concerning sexual activity between the parties. The defendant denied blackmail, alleged rape and sexual assault, and counterclaimed for damages. She applied for specific disclosure from the claimant and third-party disclosure from two intended witnesses, SET and XAM. The applications concerned communications, professional and financial relationships, medical records, metadata, laptop searches, and documents referred to in witness statements. The central issues were whether the requested disclosure was necessary, proportionate, relevant to pleaded issues, and supported by evidence of control.

1. Claimant disclosure. The applications for disclosure concerning R’s communications, professional connections and financial relationships were refused. They were directed principally to credibility. Although disclosure going to credit may exceptionally be ordered, First Subsea Ltd v Baltec Ltd [2013] EWHC 584 (Ch) showed that necessity for the achievement of justice in the particular case was required. That threshold was not met.
2. The request for all communications sent or received by the claimant during the relevant period was extravagant. Disclosure must be confined to what is necessary to deal fairly and proportionately with the issues. The claimant’s evidence that all disclosable documents had been produced was ordinarily dispositive, and the evidence relied on by the defendant was not compelling to the contrary. The principle was supported by Shah v HSBC Private Bank (UK) Ltd [2011] EWCA Civ 1154.
3. Disclosure of medical records relating to herpes was premature because the proposed issue had not yet been pleaded. The court also directed that any expert medical report should be served before the claimant decided whether to consent to amendment, followed, if necessary, by an expedited hearing and appropriate disclosure. The rules did not make a medical report mandatory in every personal injury claim, but without such evidence a claimant would ordinarily struggle to establish causation.
4. The laptop-search application failed procedurally and substantively. The requested category had not been identified in the application notices, and the defendant had not established prima facie that the documents were within the claimant’s control, as required by CPR r.31.12.
5. Third-party disclosure. The application under CPR r.31.14 and CPR r.31.17 was refused in general. However, the claimant was required to file and serve one or more further witness statements clearly identifying documents referred to in SET’s witness statement at paragraphs 5 and 7, excluding the screen shots already disclosed.