Cardiff City Football Club Limited v William Arthur McKay & Ors

An order appointing an independent lawyer to repeat a disclosure review is exceptional and intrusive. The court should begin with the assumption that solicitors acting as officers of the court have discharged their disclosure duties competently and in good faith. That assumption may be displaced by compelling evidence of a widespread or significant failure. The court must assess proportionality, including the importance of the documents, alternative means of addressing deficiencies, whether any review has occurred, the degree of intrusion, the strength and extent of the alleged failure, and the cost. Minor errors or imperfect explanations generally call for a targeted re-review, not wholesale duplication of the exercise.

The claimant had obtained contractual disclosure from the defendants concerning the transfer of Emiliano Sala. Following an order requiring an accelerated review of data retrieved from emails, text messages and other records, the defendants’ solicitors reviewed nearly 6,000 documents and disclosed the material they considered to fall within the agreed scope.

The claimant challenged the treatment of 18 documents, alleging defective review and misuse of legal privilege. It sought an order requiring an independent barrister to repeat the review and disclose documents directly to the claimant. The central issue was whether the evidence justified that intrusive and disproportionate remedy.

1. Application dismissed in substance. The court refused to appoint an independent barrister to review the entire body of documents. Instead, the defendants’ solicitors were directed to reconsider the 18 challenged documents afresh, consider the legal test for privilege where necessary, disclose any documents found to be within scope, and file a witness statement confirming the exercise and its outcome.
2. The starting assumption is that a respectable firm of solicitors expressly acting in accordance with its duties to the court is complying with those duties with professional competence and in good faith. The court should be slow to go behind that assumption. It may do so where the evidence of failure is compelling, for example where the solicitors’ own account reveals an obviously wrong approach.
3. An independent review which removes the defendants and their legal advisers from the disclosure process is intrusive by its nature. It requires strong grounds and must be proportionate to the perceived threat to the claimant’s rights. The claimant’s offer to pay the costs cannot justify an order that is unjustified in principle.
4. The relevant proportionality factors include whether disclosure is sought for adjudicative purposes, the significance of the documents and alternative means of addressing the issue, whether there has been no review or merely an allegedly imperfect review, the degree of intrusion, the strength and extent of the alleged failure, and the cost. The claimant’s disclosure rights arose from settlement and would not be remedied by adverse inferences at trial, but that feature did not outweigh the other factors.
5. The evidence disclosed possible questions concerning only three of the 18 documents. That did not establish a widespread or significant failure, particularly given the short seven-to-nine-day period in which nearly 6,000 documents had been reviewed. A targeted fresh review was the proportionate response.