COVALIS CAPITAL LP & Anor v BANCO BTG PACTUAL SA

Where parties agree a bifurcated trial, disclosure issues should be aligned with the issues for determination at each stage. Issues bearing on liability should be kept distinct from issues concerning causation, loss or interest. Disclosure should not be ordered at the liability stage if doing so would blur those questions and undermine the intended procedural and cost-saving benefits of the staged trial.

The claimants brought a breach of confidence claim against the defendant. The parties agreed that liability would be tried first, with causation, loss and related interest reserved for a second stage. The issue was whether disclosure concerning the possible staleness of an RWE plan before redemption of the fund, and the point at which confidentiality ceased, should be included in the first-stage List of Issues for Disclosure.

1. Issue 18 excluded. The court declined to order disclosure concerning whether the RWE plan became out of date before redemption of the fund, or when that occurred.
2. The agreed two-stage trial required a proper separation between liability and causation and loss. Introducing the staleness of the RWE plan or the date on which confidentiality ceased into the first-stage disclosure exercise would blur those distinct questions.
3. That approach would also undermine the procedural savings intended by hiving off the liability issues for the first hearing.
4. Issues 1 to 29 were treated as issues for the first-stage trial. Issues 30 and 31, together with interest insofar as it related to the breach of confidence claim, were reserved for stage 2.