Pan NOx Emissions Litigations, Re

In framing a disclosure order, the court directed that material predating the specified date should be excluded where its inclusion would create unnecessary disputes and costs. The operative order was to be stated by reference to the defined disclosure order. Future orders were to be made without appointing a Hague commissioner, while preserving liberty to apply where necessary. A broad reservation referring to changes in circumstances or otherwise was rejected as liable to generate further dispute.

This was an approved ruling concerning the drafting and operation of a disclosure order in the Pan NOx Emissions Litigations. The court considered the treatment of earlier material, the relationship with a March case management conference order, the scope of paragraph 2, liberty to apply, and whether future disclosure orders should require the appointment of a Hague commissioner.

The central issues were how the operative disclosure principle should be recorded and what limited mechanism should remain for a different approach to be sought in an exceptional case.

1. Earlier material. Material predating the 15th was to be excluded. The purpose was to avoid unnecessary disputes about what related to what and to enable the costs judge to take a robust view of the costs consequences.
2. Form of the order. The recital was to refer clearly to the defined disclosure order. The March case management conference order could be mentioned as background, but only after the definition of the disclosure order and only if necessary.
3. Operative principle and liberty to apply. Paragraph 2 was retained in the form advanced by the claimants. The order was to record that the principle was intended to operate for future disclosure. Liberty to apply was preserved, including the possibility of revisiting the position if an exceptional case made a different approach necessary.
4. Hague commissioner. Future orders were to be made without appointing a Hague commissioner, subject to an application if necessary. The proposed wider wording referring to a change of circumstances or otherwise was rejected because it invited further disputes.