Various Claimants v Standard Chartered PLC

In a complex disclosure exercise, proportionality requires the court to match the breadth of disclosure to the issues, likely utility and burden of review. Model E disclosure under Practice Direction 57AD is exceptional, but its assessment is not governed by rigid conditions extracted from earlier authority. The width of the document categories, the scope of the issues and the ability to identify the relevant inquiries remain important considerations. A staged approach may be appropriate: Model D disclosure first, followed by a targeted application for further or Model E disclosure if the disclosed material reveals a proper basis. Disclosure relating to pre-office knowledge may be ordered where it is potentially relevant, but the court may impose a pragmatic cut-off. Employment contracts may be disclosable where they bear on whether individuals were de facto directors.

The judgment concerned a Disclosure Guidance Hearing in group or group-like litigation brought by various claimants against Standard Chartered PLC. The court addressed five agenda items, including whether an issue concerning alleged de facto directors should be included in the Disclosure Review Document, the appropriate disclosure model, additional custodians, the relevant date range, and employment contracts.

The applications arose after Michael Green J’s earlier order and judgment, including his refusal to strike out the relevant de facto-director allegation: [2023] EWHC 2756 (Ch). Mr Justice Leech heard the hearing because the designated judge was unavailable. The central questions were whether the requested searches and disclosure categories were reasonable and proportionate, and how they should be staged.

1. De facto-director issue. The allegation that members of the Group Executive who were not de jure directors might be de facto directors had been adequately pleaded. It was therefore ordered to be included in the Disclosure Review Document. The issue had already been determined against the defendant and could be challenged only on appeal.
2. Model E disclosure. Model E was not ordered for the three wide issues concerning alleged de facto directors. The three conditions extracted from Berezovsky v Abramovich were not rigid elements of the test under Practice Direction 57AD. Nevertheless, the breadth of the document categories, the scope of the issues and the ability to identify the inquiries for reviewers were important to reasonableness and proportionality. The issues covered many custodians and potentially more than a decade, with substantial additional cost and no sufficiently clear review guidance. Model D was proportionate at this stage, with the possibility of a later targeted application.
3. Additional custodians. The claimants had not shown that searches of 34 further custodians were reasonable or proportionate. Their evidence was speculative. The judge gave limited guidance for reconsideration, including possible searches for selected senior individuals and a distinction between denied allegations requiring proof and matters arising from settlements.
4. Date range. Knowledge acquired before an individual became a person discharging managerial responsibilities could potentially be relevant to claims under sections 90 and 90A. A four-month cut-off before the alleged commencement of that role was imposed as a proportionate means of capturing key information, subject to a future specific-disclosure application or an application to vary if restoration costs proved materially greater.
5. Employment contracts and disposal. Contracts of the 12 alleged de facto directors were disclosable because they might describe roles, responsibilities and reporting lines, or assist in showing that an individual was not a de facto director. Irrelevant personal data could be redacted. An order was made reflecting the rulings, the remaining issues were adjourned for a resumed hearing, and the parties were directed to seek agreement on the form of order.

This was a first-instance Disclosure Guidance Hearing. The judgment records an earlier order and judgment by Michael Green J, including [2023] EWHC 2756 (Ch), but no appellate decision.