MICHAEL WILSON AND PARTNERS LIMITED v JOHN FORSTER EMMOTT AND OTHERS

An application under paragraph 21 of Practice Direction 51U requires the applicant first to identify documents specifically mentioned or directly alluded to in the relevant evidence. An inference that a transaction or retainer was documented is insufficient. The court must then decide whether production is reasonable and proportionate, having regard to the procedural context and the paragraph 6.4 factors. Documents mentioned only in an attachment do not generally become documents mentioned in the witness statement. A party cannot be ordered to produce documents it does not possess. Retainer letters and conditional fee agreements are not inherently privileged; privilege depends on their contents.

The claimant sought disclosure from two defendants under paragraph 21 of Practice Direction 51U. The documents were said to be mentioned in witness statements filed in support of applications by defendants to strike out claims alleging dishonest collaboration in obtaining costs orders and payment of legal fees.

The application raised questions concerning the meaning of “mentioned”, the effect of references in exhibited or attached documents, reasonableness and proportionality in an interlocutory strike-out context, possession or control of documents, and privilege in retainers and conditional fee agreements.

1. Application and governing framework. The application was governed by the self-contained code in paragraph 21 of Practice Direction 51U. The applicant had to establish both that the documents were mentioned within paragraph 21.3 and that production was reasonable and proportionate under paragraph 21.4 and paragraph 6.4.
2. Meaning of “mentioned”. The relevant test, drawn from Rudd v Bridle & Anor [2019] Costs LR 1067 and Rubin and Expandable Limited [2008] EWCA Civ 59, required specific mention or direct allusion to the document. References to a retainer, contract, loan, guarantee or other transaction did not, without more, amount to a mention of a written document. The fact that a written retainer would probably exist did not satisfy the test.
3. Attachments and exhibits. A document referred to only in a document attached to or exhibited with a witness statement was not generally to be treated as mentioned in the witness statement. Such a construction would create an excessively wide search obligation and undermine cost, expedition and proportionality. The application had to focus on documents relied upon as part of the evidence of the maker of the statement.
4. Reasonableness and proportionality. Because the disclosure was sought for an interlocutory strike-out application, the assessment was more focused than one conducted for trial disclosure. Probative value, the number of documents, and the need for an expeditious and proportionate hearing were of particular importance. The requested documents were not ordered where the relevant references did not amount to mentions, where the documents were not in the defendant’s possession, or where production would be disproportionate.
5. Privilege. Retainer letters and conditional fee agreements were not privileged merely because of their nature. Privilege depended on the contents. An engagement letter could attract legal professional privilege to the extent that it disclosed the particular subject matter of legal advice. The redacted uplift figure in the conditional fee agreements was immaterial and need not be disclosed. The reason for the uplift was potentially privileged, although a short witness statement explaining the basis of the privilege claim might be required without revealing privileged material.
6. Disposition. No disclosure order was made in respect of the documents sought from the defendants, subject to limited further submissions concerning unsigned retainer documents and the explanation for the privilege redaction.