Northumbria Healthcare NHS Foundation Trust & Anor. Lendlease Construction (Europe) Limited & Anor.

Specific disclosure requires more than showing that documents are generally relevant to pleaded issues. The applicant must identify the disclosure issue to which the requested documents relate, particularly where the disclosure pilot applies. Delay, the breadth of the categories sought and the proximity of trial are material factors.

For privilege, the court examines the purpose for which documents were created. Documents produced by a group formed expressly to assist solicitors in responding to requests for information and pleading litigation are privileged where there is no separate operational purpose. The court may scrutinise a claim of privilege and may order further evidence or inspection where the claim is not established.

A late summary judgment application may be refused where listing it would disrupt trial preparation and the issues may require factual evidence or findings binding on parties at trial.

The defendants sought specific disclosure concerning the claimants’ substantial claim for hospital decanting costs. The application followed extended disclosure in November 2020 and was made shortly before an eight-week trial. The remaining disputes concerned privilege, the relevance of documents generated by consultants, and documents relating to alternative decant arrangements.

Keppie raised a concern that the claimants’ decant expert might possess information unavailable to other experts. BBK raised a further disclosure issue concerning emergency response plans.

Horbury Group Ltd then sought directions to list an application for summary judgment or strike out of a parent company guarantee claim before trial. The central issues were whether further disclosure should be ordered and whether the summary judgment application should be heard before trial.

1. Specific disclosure. The defendants’ application was dismissed. The court treated the lateness of the application as significant because disclosure had occurred in November 2020, the decant claim had long been central, and trial was imminent. The broad categories sought were also inconsistent with the need to identify the particular disclosure issue said to require resolution.
2. Privilege. The Small Project Group had been formed expressly to respond to requests for information and develop the pleaded decant case. Its meetings and related notes were therefore privileged. The group had no separate operational or board-reporting purpose. The court applied the requirements for litigation privilege and legal advice privilege, including the dominant-purpose requirement and the need for specific evidence supporting a privilege claim.
3. Other disclosure issues. No further searches concerning the McAvoy Building were ordered because the existing evidence showed that the option had been considered and abandoned, with no indication of undisclosed material. No order was made concerning the decant expert’s meetings, but the court reminded the experts that information or documents relied upon in forming opinions must be made available to the other experts. BBK was given liberty to apply after exchange of relevant Emergency Response Plans.
4. Summary judgment or strike out. The court declined to list Horbury Group’s application before trial. It was made substantially later than it could have been, would disrupt preparation for the imminent trial, and might require factual evidence concerning the parent company guarantee and other projects. HGL’s liability was also dependent on findings concerning Horbury, making it unsatisfactory to determine the issue separately without HGL being bound by those findings.