Promontoria (Chesnut) Ltd v Mark Adrian Grosvenor Lloyd Steeds & Anor

Specific disclosure is discretionary. A party has no automatic entitlement to disclosure merely because the material may assist in challenging the opponent’s title. A sworn disclosure statement will ordinarily be conclusive on relevance unless there is proper material justifying the court in going behind it. The court may distinguish documents effecting a transfer of title from antecedent contractual documents that do not themselves transfer title.

Judicial intervention in case management is permissible where it tests submissions, maintains relevance and promotes efficiency. Robust intervention does not, without more, establish apparent bias or an unfair hearing. The limits are reached where the judge prevents a party from properly presenting its case or conducts the hearing in a bullying or apparently partial manner.

The defendants appealed from a County Court decision dismissing their application for specific disclosure in proceedings concerning loans and related securities. The claimant had disclosed a redacted deed of assignment, later disclosing an earlier novation agreement. The defendants sought the novation agreement and wider documents relating to the alleged chain of title.

The County Court held that the claimant’s solicitor’s sworn evidence on relevance was conclusive, that the novation agreement was not a document of title, and that the wider request was hopelessly vague. Permission to appeal was refused on the papers. The defendants renewed their application before the High Court, alleging an unfair hearing, apparent bias, and errors in the disclosure ruling.

1. Renewed application dismissed. The proposed appeal was not properly arguable. The decision below was a case management decision involving the exercise of discretion.
2. Judges may intervene to ensure that proceedings are conducted efficiently and that submissions remain relevant. They may test and challenge submissions, and may be robust with professional advocates. An expression of scepticism does not establish apparent bias unless the judge conveys an unwillingness to be persuaded whatever the evidence. The court applied the approach in Arab Monetary Fund v Hashim (1994) 6 Admin. L.R. 348 and agreed with the observations in Dorman v Clinton Devon Farms Partnership [2019] EWHC 2988 (QB).
3. There are limits to intervention. A hearing is unfair where judicial conduct prevents advocates from presenting the case in an orderly and sensible manner, or where intervention demonstrates an appearance of bias. The court adopted the distinction explained in Alpha Lettings Ltd v Neptune Research & Development Inc. [2003] EWCA Civ 704. On the recording and transcript, the judge had been sarcastic and patronising but counsel had been able to make her submissions. A fair-minded observer would not conclude that the hearing was unfair or that the judge was biased.
4. Under r.31.12(1) of the Civil Procedure Rules 1998, specific disclosure is discretionary. A party’s sworn disclosure statement will ordinarily be conclusive on relevance unless proper material justifies going behind it. Applying GE Capital Corporate Finance Group Ltd v Bankers Trust [1995] 1 W.L.R. 172 (CA) and Shah v HSBC Private Bank (UK) Ltd [2011] EWCA Civ 1154, there was no sufficient basis to do so.
5. The novation agreement was an antecedent contract and not a document effecting transfer of title. The judge was entitled to reject the broad request for all documents relating to assignments and novations as hopelessly unfocused. No error of law, irrelevant consideration, or failure to consider a relevant factor was shown. The appeal court should not lightly interfere with such a case management decision. The renewed application for permission to appeal was dismissed.

• High Court (Queen’s Bench Division): The renewed application for permission to appeal was dismissed.
• County Court at Coventry: His Honour Judge Gregory dismissed the defendants’ application for specific disclosure on 24 June 2019.
• High Court: Jeremy Baker J refused permission to appeal on the papers on 16 October 2019.