Tonzip Maritime Ltd v Coral Energy Pte Ltd

Applications for further or varied extended disclosure under CPR Practice Direction 57AD must be directed to the issues in dispute on the statements of case. They cannot ordinarily be used as a fishing expedition to discover a possible, unpleaded defence. The applicant must establish the relevant failure to comply, or the necessity of varying the disclosure order, and must also show that the proposed order is reasonable and proportionate. Delay and the likely disruption of a fixed trial are material to that assessment and to the court’s discretion.

The Owners claimed damages for alleged repudiatory breach of a voyage charterparty. The Charterers applied for specific disclosure of records and correspondence concerning defects in the vessel’s fuel-oil purifiers, contending that the material might support a defence or affect mitigation and quantum.

The application was made under paragraphs 17.1 and 18.1 of CPR Practice Direction 57AD, after disclosure and exchange of factual and expert evidence and shortly before trial. The central issues were whether the documents related to the pleaded issues, whether the existing disclosure order had been inadequately complied with or should be varied, and whether the requested relief was reasonable and proportionate.

1. Application dismissed. The requested documents concerned the vessel’s condition and the validity of the Notice of Readiness, neither of which was an issue on the statements of case. The court applied the approach in Lonestar Communications Corporation LLC v Kaye [2020] EWHC 1890 (Comm) and Curtiss v Zurich Insurance Plc [2021] EWHC 1999 (TCC): disclosure must be directed to the issues in dispute on the statements of case.
2. The speculative expert evidence did not provide a sufficient basis for amending the Defence. The application was effectively a search for a possible further defence. The documents were also not required for the pleaded quantum issue.
3. Under paragraph 17.1 of CPR Practice Direction 57AD, the applicant had to show an actual or possible failure adequately to comply with the extended disclosure order. Under paragraph 18.1, it had to show that variation was necessary for the just disposal of the proceedings. In either event, the order also had to be reasonable and proportionate by reference to paragraph 6.4.
4. The court was not satisfied that either threshold was met. In any event, the application was refused in the exercise of discretion. It was issued more than two months after the Owners’ position had been made clear. Granting it would either produce a fruitless exercise or require substantial amendments, further evidence and vacation of the trial date.
5. The court ordered the Owners to provide a witness statement confirming compliance with Model D disclosure for the quantum claim, explaining the absence of the Claim File from the Disclosure Certificate, and confirming that the Claim File had been disclosed in full except for privileged documents. Costs were reserved.

First-instance decision on an application made in ongoing Commercial Court proceedings. No appellate history was stated in the judgment.