SDI RETAIL SERVICES LTD v THE RANGERS FOOTBALL CLUB LTD

Under paragraph 18 of CPR Practice Direction 51U, the court may order additional specific disclosure, or vary an existing extended-disclosure order, where the documents are relevant, necessary for the just disposal of the proceedings, and reasonable and proportionate. Documents may remain relevant to a counterfactual damages inquiry even though they concern a later commercial arrangement that is not itself the subject of the claim. Relevance does not require a perfect comparison. Documents are not “known adverse documents” merely because they may assist the opposing party; the disclosing party must actually know that they contradict or materially damage its case, or support the opponent’s case.

SDI Retail Services Ltd claimed damages for Rangers Football Club Ltd’s breach of a contractual matching right concerning the manufacture, wholesale supply and retail of Rangers-branded products. SDI sought disclosure under paragraph 18 of CPR Practice Direction 51U of the agreement between Rangers and Castore, quarterly sales statements for the 2020–2021 and 2021–2022 seasons, and accompanying information. SDI argued that the documents were relevant comparators for its counterfactual damages case and were also known adverse documents. Rangers disputed relevance and offered substitute reports. The central issues were relevance, necessity, reasonableness and proportionality, and whether the documents were already disclosable as known adverse documents.

1. Application under paragraph 18. The court allowed disclosure of the Castore Agreement, the Castore Quarterly Statements for the 2020–2021 season, and accompanying information. The application for the first-quarter statement and accompanying information for 2021–2022 was refused.
2. Paragraph 18.1 permits variation of an existing extended-disclosure order or specific disclosure of an identified document or narrow class relating to an Issue for Disclosure. Paragraph 18.2 requires necessity for the just disposal of the proceedings and reasonableness and proportionality.
3. The Castore documents were relevant to the counterfactual assessment of SDI’s damages. They could provide evidence of sales and revenue during the 2020–2021 season and the relevant launch period, although differences between SDI and Castore and between their contractual rights would require assessment at trial. The fact that Castore was not pleaded as a cause of action did not make its arrangements irrelevant.
4. The first-quarter 2021–2022 statement was insufficiently relevant to justify disclosure. The substitute reports were not a reasonable and useful alternative because they omitted material retail information and the Castore Agreement, and were newly produced rather than contemporaneous documents.
5. The documents were not known adverse documents under paragraphs 2.7 and 2.8. Although they were within Rangers’ control, there was no evidence that Rangers was actually aware that they were adverse.
6. The court ordered disclosure under paragraph 18.1 and stated that, alternatively, it would have varied the existing extended-disclosure order.