BDW Trading Limited v URS Corporation Limited & Anor

Disclosure directions should be proportionate to the issues, likely evidential value and anticipated cost. A proposed search term may be refused where it is likely to generate substantial additional work for limited benefit and the relevant material is likely to be captured by existing searches. The court may require additional custodians where they may hold significant high-level documents not available from other custodians. Duplication and excessive volume are relevant considerations, particularly where document-review software is available to reduce duplication. Where potentially relevant documents may not be captured, the court may leave open correspondence or an application for specific disclosure.

The judgment concerned a Costs and Case Management Conference in related construction disputes arising from alleged structural defects in developments designed by companies in the AECOM group. The claimant proposed searches including the term “Barrier Park”. The defendants sought the additional term “Project Ashby”, referring to a wider programme of investigations and remedial works, and sought the addition of three further custodians to the claimant’s disclosure searches. The issues were whether that search term was proportionate and which custodians should be searched.

1. Search term. The court declined to order use of “Project Ashby”. It was likely to produce additional work for a relatively limited return. The disclosure issues identified in the Disclosure Review Document were primarily directed at the Barrier Park development, and relevant material concerning Project Ashby was expected to be revealed by the “Barrier Park” search.
2. The wider Project Ashby documentation could nevertheless be relevant, including material explaining why the claimant undertook remedial work which, on the defendants’ case, it was not legally liable to undertake. If relevant board minutes or communications between Barratt and the Government were not revealed, their absence should be apparent and could be addressed through correspondence or, if necessary, an application for specific disclosure.
3. Custodians. The court accepted that Mr Boyes and Mr Thomas should be added. They might hold high-level documents unavailable from other custodians. The court did not expect them to hold large volumes responsive to the proposed searches, and available AI software would limit duplication.
4. Mr Ennis was not added. It appeared unlikely that he held significant documentation not captured by searches of the Boyes and Thomas files or the Kirk and Champion files.
5. The disclosure directions were therefore determined in part in favour of the defendants: the additional search term was refused, while two additional custodians were ordered to be included.