Christopher Bernard Upham & Ors. v HSBC UK Bank Plc

Where proceedings are managed through sample claimants, early disclosure should be confined to material properly relevant to the generic issues and the identified document pools. It should not ordinarily require searches by non-sample claimants or their agents, since that would undermine the purpose of the sample-claimant process and may amount in substance to third-party disclosure.

Issues such as inducement, reliance and limitation may be claimant-specific, even where they appear in generic pleadings. They should generally be addressed when the sample claimants’ individual cases have been pleaded. For an early manual search of an identified document pool, the court need not require the usual identification of underlying custodians, date ranges or search terms.

Two linked but separate proceedings concerning investments in the Eclipse film scheme were being case managed and tried together against HSBC. At an earlier case management conference, the court ordered a sample-claimant process and provided for an initial stage of disclosure before the sample claims were finally determined.

The parties disagreed about the meaning and scope of that order. HSBC sought disclosure by reference to issues in the generic pleadings, including searches of documents held by individual claimants or their agents. The claimants proposed limiting the initial searches to document pools held by their solicitors. The court was also asked whether the initial disclosure should cover inducement, reliance, limitation and personal recommendations, and whether the proposed DRDs contained sufficient search detail.

1. Scope of early disclosure. The agreement and the first CMC order established that individual claimants were not required to search for documents at this stage. The sample-claimant process was intended to make the proceedings manageable and control costs. Requiring searches of files held for non-sample claimants would be inconsistent with that purpose and with the stay applying to claims other than those of the sample claimants.
2. Document pools. Early disclosure was therefore limited to the respective pools of documents held by the solicitors. It did not extend to individual claimants or their agents, apart from the specified pools. Ordering disclosure from non-sample claimants would in substance go beyond ordinary party disclosure and could amount to third-party disclosure. HSBC had not shown that the test for third-party disclosure under CPR 31.17, including necessity for the fair disposal of the claim, was satisfied.
3. Claimant-specific issues. Inducement, reliance and limitation were at least partly claimant-specific on the pleadings. Searching the generic document pools for those issues at this stage would provide little advantage because the relevant documents and knowledge would differ between claimants. Those issues should be addressed when the sample claimants had pleaded their individual cases.
4. DRD detail. The Disclosure Review Documents could be approved subject to the Edwin Coe amendments. No revised Section 2 was required from the Stewarts Claimants, whose pool was to be searched manually. At this stage it was unnecessary to identify the underlying custodians, date ranges or search terms, because the search was against the identified pools rather than the custodians of the underlying documents.