DKH Retail Limited & Ors v City Football Group Limited

A document specifically mentioned or directly alluded to in a witness statement may be inspected under Civil Procedure Rules 1998, subject to privilege and the court’s discretion. The court assesses refusal by reference to relevance, probative value, reasonableness and proportionality. A party seeking inspection need not show that the document was relied on in the evidence.

The court may order unwilling parties to mediate. A judicial determination is not necessarily required merely because the parties seek one, and mediation need not have a high or demonstrable prospect of success. The court should consider the dispute’s nature, the available settlement options, timing, costs and likely effect on the proceedings.

This was a pre-trial review in trade mark and passing-off proceedings concerning branding on Manchester City football kit. The claimants sought inspection of the sponsorship contract between the defendant and Asahi, which was identified in a list annexed to a witness statement and discussed in the statement’s account of the sponsorship relationship.

The claimants also sought an order requiring the parties to mediate before trial. The issues were whether the contract had been mentioned for the purposes of inspection and whether the circumstances justified compulsory mediation.

After the order for mediation was made, the parties notified the court that they had settled.

1. Inspection of the sponsorship contract. The witness statement had to be read as a whole, including its annexed document list. The references to the written sponsorship contract, read with the evidence describing the signed contract as the first step in activating the sponsorship, amounted to a direct allusion to a specific document. The document was therefore mentioned within Civil Procedure Rules 1998, r 31.14.
2. Once mention was established, the burden lay on the defendant to show good reason why inspection should be refused. The court retained a discretion under Civil Procedure Rules 1998, r 31.3. Relevant considerations included relevance, likely probative value, the importance and complexity of the issues, the number of documents, search expense, fairness, expedition and proportionality.
3. The contract was not plainly irrelevant. Although the evidence mainly concerned practical use of Asahi branding, contractual provisions concerning the nature of the brands could assist cross-examination about the size and presentation of “Super” and “Dry”, and might bear on the allegation of unfair advantage. Inspection was ordered.
4. Compulsory mediation. Following Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, the court had power to order unwilling parties to engage in ADR. The amendments to the Civil Procedure Rules 1998 reinforced that power.
5. The court was not confined to cases where mediation had a high prospect of success. Even strongly opposed commercial parties may settle through mediation, and mediation may offer solutions beyond the binary outcome available at trial. Having regard to the crystallised positions, the self-contained dispute, timing, cost and limited likely disruption, mediation during December 2024 was ordered. The parties were directed to report its outcome. The dispute was subsequently settled.