Irwell Riverside Developments Limited v Arcadis Consulting (UK) Limited

Applications under Practice Direction 57AD must be directed to the correct disclosure mechanism. Paragraph 17 addresses an alleged failure to comply with an existing disclosure order. Paragraph 18 concerns variation of that order and imposes the additional requirement that variation be necessary for the just disposal of the proceedings.

An applicant under paragraph 17 should identify the alleged failures precisely by reference to the Disclosure Review Document and specify the further searches sought, including relevant terms, date ranges or custodians. The court will assess reasonableness and proportionality, including the nature and complexity of the issues, the likely probative value of documents, the burden of searching and the value of the claim. Where an erroneous approach to relevance may have omitted material documents, further searches and explanatory evidence may be ordered.

The claimant property developer brought a substantial claim against structural engineers arising from defects in the design of concrete podium slabs forming part of a modular apartment development. The claim included losses for delay, remedial works, lost sales, a lost development opportunity and extended finance charges.

The defendant applied for further disclosure under paragraphs 17 and 18 of Practice Direction 57AD. It alleged that the claimant’s disclosure was inadequate, particularly in relation to finance, remedial works, alternative causes of delay, insolvency of a modular supplier, site records and construction programmes. The central issue was whether there had been, or might have been, inadequate compliance with the existing extended disclosure order warranting further searches.

1. The application was principally under paragraph 17.1 of Practice Direction 57AD. Paragraph 17 concerns failure, or possible failure, to comply with an existing order and requires the applicant to establish that the further order sought is reasonable and proportionate. Paragraph 18 concerns variation of the existing order and additionally requires proof that variation is necessary for the just disposal of the proceedings.

2. A party seeking relief under paragraph 17.1 should generally identify the alleged failures with precision by reference to the Disclosure Review Document. A request for further or extended searches should identify the proposed search methodology, such as search terms, date ranges or custodians. The disclosure process may be iterative and depends significantly upon co-operation between the parties.

3. The court applied the reasonableness and proportionality factors in paragraph 6.4 of Practice Direction 57AD. The agreed search process did not prevent the court from ordering further searches where there was evidence that documents may have been excluded because of an erroneous approach to relevance.

4. In relation to delay, it was necessary to consider potential causes other than the defendant’s design breach. The defendant was entitled to examine programmes predating the relevant design revision to assess pre-existing delay and whether it had been properly accounted for. Further searches were therefore ordered for progress reports, site meeting minutes, documents concerning the modular supplier’s insolvency and replacement contractor, and construction programmes, including earlier and as-built programmes.

5. Further searches were also ordered for substantiation of internal finance charges. No order was made in respect of the other disputed categories where the claimant had undertaken the agreed searches, the application lacked precision, or the defendant had not shown an inadequate compliance with the existing order. The parties were directed to co-operate on the consequential order, with further written submissions if agreement could not be reached within 10 days.