The Owners of the "Christos Theo" v The Owners of the "Aliki"

Specific disclosure may be ordered where the applicant establishes a proper prima facie basis for believing that relevant documents exist and are likely to assist in resolving a pleaded issue. The court may assess the apparent plausibility and completeness of the opposing party’s disclosure, including the evidence supporting the likely existence of further documents. Disclosure is not speculative merely because the precise cause of an event remains uncertain. Expert evidence may address factual questions involving technical expertise, although the ultimate findings remain for the court. Requests for further information must provide genuine clarification. They must not become argumentative cross-examination or interlocutory preparation for trial.

The claim concerned damage sustained by the vessel Christos Theo during a near miss and grounding. The defendants alleged that a malfunction of the main engine or its control system prevented the crew from putting the engine astern. They sought specific disclosure of documents concerning the incident, prior engine problems, maintenance, repairs and manuals.

The claimants sought further information about the defendants’ pleaded case concerning what the crew ought reasonably to have done to stop the vessel and avoid the grounding. The court also determined the appropriate question for marine engineering experts and costs consequences.

1. Specific disclosure. The defendants had demonstrated a prima facie case that the main engine or its control system may have malfunctioned, supported by the failed attempts to engage astern, the alarms and the surrounding technical evidence. This was sufficient to establish that the requested documents were relevant to whether a malfunction occurred, its cause and the crew’s knowledge or constructive knowledge.
2. The requests were not dependent on a fully developed case on apportionment. It would be unreasonable to require that case to be completed before disclosure of documents relevant to culpability. Nor were the requests train-of-inquiry disclosure or a fishing expedition. The evidence of the defendants’ marine engineering expert provided a proper and sufficient basis for further searches, notwithstanding the claimants’ assertions that searches had produced no further documents.
3. Orders were made for further searches and, if searches remained negative or documents were no longer within the claimants’ possession or control, disclosure statements. The court declined to order further photographs because that request was speculative and the alleged malfunction was unlikely to be captured photographically.
4. Expert evidence. The defendants’ proposed question was approved. It was permissible for marine engineers to express an opinion on whether the engine malfunctioned, even though the ultimate factual determination belonged to the court. The term defective appropriately captured the relevant technical inquiry.
5. Further information. The defendants’ particulars adequately adopted the required cards-on-the-table approach. The claimants’ application was argumentative and amounted to cross-examination. Further information was not reasonably required under Rule 61.4 and paragraph 4 of the Practice Direction. These matters were for trial, not interlocutory skirmishing.
6. The defendants were awarded their costs in any event, subject to detailed assessment at the conclusion of the case. The claimants were ordered to make an interim payment on account of £70,000.