Excelerate Technology Limited v West Midlands Ambulance Service NHS University Foundation Trust & Anor

Parties seeking judicial guidance on disclosure issues should identify the precise issue by application notice. They should explain why court guidance is required and whether the issue is suitable for determination on the papers or at a focused hearing. The procedure in paragraph 11 of Practice Direction 57AD provides useful guidance even where the claim is governed by Part 31 of the Civil Procedure Rules 1998. Unfocused correspondence, late formulation of issues and attempts to raise unrelated applications at the hearing are unacceptable and may justify an adverse costs order.

This was a public procurement claim governed by the usual disclosure rules in Part 31 of the Civil Procedure Rules 1998, because public procurement claims fell outside the scope of Practice Direction 57AD. The claimant sought guidance on electronic disclosure, but did not issue a formal application notice or clearly identify the questions requiring determination. The parties exchanged extensive bundles and only clarified their positions shortly before the hearing.

The court considered the proper procedure for seeking disclosure guidance and the appropriate allocation of the hearing costs, particularly as between the claimant and each defendant.

1. Proper procedure. Parties seeking guidance on disclosure issues should issue an application notice clearly identifying the issue on which guidance or further directions are sought. Although Part 31 contains no bespoke disclosure-guidance procedure, paragraph 17 of Practice Direction 31B requires parties to seek directions at the earliest practical date when agreement cannot be reached.
2. Useful model. Paragraph 11.2 of Practice Direction 57AD provides useful guidance in Part 31 cases. The application should identify a significant difference between the parties, explain why guidance is required without formal determination, and address whether the issue is suitable for paper determination or a focused hearing.
3. Consequences of lack of focus. Failure to issue an application notice caused delay, prevented the court from assessing whether guidance could be given on the papers, impeded agreement or narrowing of issues, and encouraged an impermissible attempt to raise multiple applications without proper notice or evidence. It was unacceptable practice to seek, at the hearing, orders concerning disclosure compliance, confidentiality, inspection, suspension of disclosure, mediation, a stay or vacation of the trial date without properly issued applications.
4. Costs. The ordinary costs of a disclosure-guidance hearing under paragraph 11.5 of Practice Direction 57AD would ordinarily be in the case. That approach was appropriate between the claimant and the first defendant, given criticisms of both parties’ disclosure conduct. The claimant was ordered to pay the second defendant’s costs of the hearing because it had failed to engage timeously with that defendant’s position and had not clearly articulated the issues. The order did not extend to the second defendant’s ordinary litigation costs of corresponding on disclosure.