Salim Moosa & Ors v Karim Issa Mawji

Applications for late disclosure require strict attention to the applicable procedural threshold, reasonable and proportionate case management, and the need for the just disposal of proceedings. Under Practice Direction 57AD, an application under paragraph 17 requires evidence of an actual or likely failure to comply with an existing disclosure order. Speculation or general suspicion is insufficient. An application under paragraph 18 additionally requires proof that variation is necessary for the just disposal of the proceedings. Where late disclosure would require vacation of a trial, the applicant bears a heavy burden. The court must consider prejudice to the parties, expedition, proportionality, court resources and the legitimate expectation that trial fixtures will be kept.

The claimants alleged that the defendant had acted as their agent, trustee or fiduciary in managing a property portfolio and sought accounts, inquiries and equitable relief. Following extensive case-management directions and disclosure, they applied shortly before trial under Practice Direction 57AD, paragraphs 17 and 18, for production of 27 documents or categories of documents, many held by third-party entities. They also sought an adjournment because the requested disclosure was said to be necessary for witness statements and trial preparation.

The defendant denied non-compliance, disputed control over third-party documents and submitted that the application was late, speculative and disproportionate. The central issues were whether the claimants had established a failure to comply with the disclosure order, whether variation was necessary for the just disposal of the proceedings, and whether the proposed orders justified losing the trial date.

1. The applications were dismissed. The application under Practice Direction 57AD, paragraph 17, and the informal application under paragraph 18 were refused. The application to adjourn the trial was also dismissed. The trial was directed to proceed, subject to a short extension for the claimants’ witness statements.
2. Paragraph 17 required a two-stage approach. The claimants first had to show an actual or likely failure adequately to comply with the disclosure order. They then had to establish that a curative order was reasonable and proportionate. General suspicion and speculation were insufficient. The evidence did not identify any breach of the agreed Disclosure Review Document or establish a likelihood that further documents existed.
3. The court rejected the proposed inference that documents held by third-party entities were under the defendant’s control. Control requires the relevant right to possession, inspection or copying, or an arrangement or understanding of the kind described in Berkeley Square v Lancer Property Asset Management Ltd. The defendant’s evidence gave a detailed account of the searches undertaken and the position of the third parties. The claimants produced no proper basis for going behind the disclosure certificate.
4. Paragraph 18 was more difficult to satisfy because variation had to be necessary for the just disposal of the proceedings as well as reasonable and proportionate. The claimants’ evidence did not explain why the original order should be varied. The proposed witness statement, requests to third parties and targeted searches were late, insufficiently precise and unsupported by evidence showing that the documents were essential to a fair trial.
5. The court applied the principles governing late applications for disclosure. The claimants bore a heavy burden, particularly because the application would inevitably vacate the trial. The need for expedition, prejudice to the defendant, disruption to other court users and the claimants’ failure to act earlier outweighed the asserted benefits. Documents sought to formulate further claims, assess the position, formulate relief or assist witness statements did not justify the order on the evidence.