PATRICIA ANN LOCK v GUHENDRAN RAVI-SHANKAR

Parties and their solicitors must take positive and timely steps to identify, preserve and disclose documents falling within the disclosure duty. It is insufficient merely to give preservation instructions. If a relevant document comes to a party’s notice during proceedings, the party must notify every other party immediately. Where disclosure is incomplete, inconsistent or inadequately explained, the court may require a further witness statement, amended pleadings or further evidence, and may make appropriate case-management orders. The court is entitled to require a complete explanation of how documents came to light, particularly where late disclosure affects issues in dispute or responses to requests for information.

The defendant applied for a complete disclosure list supported by a statement of truth, a witness statement explaining the searches undertaken, amended particulars of claim and further witness statements. The application followed the claimant’s late reference to Facebook messages in an agenda for a causation experts’ meeting. Those messages appeared inconsistent with the claimant’s earlier disclosure list and with her response to a request for information about the onset of illness and absence from work.

The court adjourned the application for an explanation from the claimant’s solicitor. The issue was whether the explanation was sufficiently complete and whether further case-management directions were required.

1. Further explanation required. The claimant’s solicitor’s witness statement contained material discrepancies. It did not explain how Facebook messages referred to in the experts’ agenda on 4 October 2021 had been discovered, or why they had not previously been disclosed. The court and the defendant were entitled to a further statement clearing up the discrepancies and setting out the position completely.
2. Disclosure obligations. The court relied on the disclosure duties stated in the White Book, Part 32 and Part 31.11. Solicitors must take positive steps, at an early stage, to ensure that clients understand their disclosure and preservation duties. It is not enough simply to instruct a client to preserve documents; steps must be taken to ensure that preservation occurs. If documents within the duty later come to a party’s notice, the party must immediately notify every other party.
3. Case-management order. The preamble to the proposed order was to be removed. The order was amended to include the Litigation Friend and the claimant’s husband, but not all members of the claimant’s family. Paragraphs 5D and 6 were removed, and the remainder of the defendant’s proposed order was made.

Not an appeal. The judgment determined an interlocutory case-management application in the High Court.