Cocoa SDN BHD & Anor v Maersk Line A/S

In Business and Property Courts proceedings governed by Practice Direction 57AD, an application for additional specific disclosure must proceed under paragraph 18. The court’s general case-management powers cannot be used to bypass that regime. The applicant must show that the variation is necessary for the just disposal of the proceedings and reasonable and proportionate, supported by an adequate explanation of the original order and the proposed variation.

The court should avoid a mechanistic response to technical defects in the supporting evidence. However, disclosure will be refused where the documents are not relevant or necessary. Communications with third parties made by solicitors to gather evidence for existing proceedings are privileged. Referring to the substance of such communications does not waive privilege unless the material has been deployed in evidence.

The claimants sought damages concerning cocoa beans carried from Nigeria to Malaysia. They relied on survey reports and certificates as evidence that the cargo was in sound condition when loaded. A later exchange between the claimants and the surveyor purported to explain an apparent error in a loading report.

The defendant applied for specific disclosure of the communications underlying that exchange. The application relied on CPR 31.12, CPR 3.1(2)(m), the court’s inherent jurisdiction and, alternatively, paragraph 18 of Practice Direction 57AD. The claimants opposed disclosure on procedural, relevance, necessity and privilege grounds.

The central issues were the applicable procedural route, whether the paragraph 18 conditions were met, and whether privilege had been waived.

1. Application refused. Part 31 was expressly disapplied in the Business and Property Courts by paragraph 1.8 of Practice Direction 57AD. Paragraph 18 provided the applicable route for varying an extended disclosure order. The court’s general powers under CPR 3.1(2)(m) could not be used to obtain through the back door what the specific disclosure regime did not permit.
2. Under paragraph 18, the applicant had to establish that further disclosure was necessary for the just disposal of the proceedings and reasonable and proportionate, and had to provide a statement explaining the original order and why variation was justified. The requirements were not to be applied mechanistically. The disclosure issue and the timing of the documents sufficiently explained why the original order had not covered them.
3. The communications were not relevant or necessary to the identified disclosure issue. The alleged clerical error did not assist in determining the condition of the cargo when loaded. The existing discrepancies already undermined the evidential force of the survey documents, and the expert evidence did not support investigating the cargo’s earlier treatment as a cause of the damage.
4. Communications between solicitors and third parties made to gather evidence for existing proceedings were privileged. Investigating why a certificate appeared inaccurate was evidence-gathering, even if the purpose was also to explain existing documentary evidence.
5. The January email had not deployed the underlying communications in evidence. It was not relied upon at trial, and its inclusion in a trial bundle did not itself constitute deployment. Consequently, privilege had not been waived and the court could not order disclosure. The judge also observed that unnecessary correspondence should not ordinarily be placed in a trial bundle; disputed additional documents should instead be put in a separate bundle for the court’s ruling.