Aurora Cavallari & Ors v Mercedes-Benz Group AG & Ors

Early disclosure is governed by the overriding objective and must be reasonable and proportionate when ordered. The applicant must identify a proper basis and show that disclosure will achieve something important or significant, but need not prove that it cannot plead its case without the documents.

In group litigation, scale, information asymmetry, issue refinement and efficient case management may make that threshold easier to satisfy where a known document is directly relevant. Confidentiality is not itself a bar to disclosure; a carefully controlled confidentiality ring may provide adequate protection. The court may also order the creation of a case-management document, such as an index, where efficient conduct of group litigation requires it.

The claimants in a group action concerning alleged unlawful defeat devices in Mercedes diesel vehicles applied for early disclosure concerning decisions and investigation materials held by the defendants. Disclosure relating to the European Commission decision was agreed. The contested application concerned the confidential, unredacted decision of the South Korean Fair Trade Commission, documents expressly referred to in that decision, the KFTC file, requests for information and responses, and an index.

The central issues were whether early disclosure was justified before service of the generic defence, whether the material was sufficiently focused and proportionate, how confidentiality should be protected, and whether the court could require creation of an index that did not yet exist.

1. Principles. The court held that disclosure, including early disclosure, must be reasonable and proportionate at the time the order is made. The overriding objective in CPR Part 1.1 governs the exercise of case-management powers.
2. Early disclosure test. The applicant must establish a proper basis for early disclosure and identify something important or significant that the order will achieve. The suggestion that the applicant must be unable to plead its case without the documents was rejected as an absolute requirement. The court must also consider the extent to which the claim is supported, the scope and cost of disclosure, non-specific searches, and confidentiality protection under PD 31C.
3. Group litigation. The test remains demanding and early disclosure remains rare. However, in large-scale group litigation, a known document directly relevant to the issues may more readily satisfy the important-or-significant requirement. Disclosure may assist issue refinement, future case management, correction of information asymmetry and efficient cooperation between the parties.
4. Confidentiality. The KFTC decision was inadmissible as proof of its findings, but that did not make it irrelevant or prevent disclosure. Confidential information could be protected through a court-controlled confidentiality ring.
5. Order. Early disclosure was granted for the unredacted KFTC decision and documents expressly referred to in it. The wider requests for documents on the KFTC file, requests for information and responses were too broad for early disclosure. The defendants were ordered to create an index or contents document for the KFTC file, because efficient case management required it even though it did not yet exist.

First-instance decision on applications for early disclosure and related case-management orders. The judgment does not state any prior appellate decision.