Novitas Loans Limited v AmTrust Europe Limited

Disclosure issues should be included where they concern matters arising from the pleadings and are relevant to a pleaded contractual or tortious duty. An existing disclosure issue does not necessarily make a further issue unnecessary merely because the issues overlap. The court may consider the distinct subject matter of the proposed issue, together with practical factors such as common custodians, date ranges and search terms. Where the proposed issue separately addresses matters genuinely in dispute, disclosure should be ordered on that basis.

The ruling concerned AmTrust’s proposed Disclosure Issues 5A and 5B in proceedings involving allegations about the obligations of scheme solicitors in relation to ATE insurance arrangements.

AmTrust sought disclosure of managerial discussions or communications concerning risk assessments and the eligibility criteria in Appendix 1 of the TOBAs. A related disclosure issue, 3A and 3B, had already been agreed and concerned the validity of the scheme solicitor TOBA and the solicitor’s obligations under it. The central question was whether the overlap made the additional issues unnecessary.

1. Disclosure Issues 5A and 5B were included. The proposed issues concerned discussions or communications about risk assessments and the eligibility criteria in Appendix 1 of the TOBAs.
2. The issues were relevant because AmTrust alleged that the scheme solicitors owed duties to carry out full and detailed risk assessments, provide a professional and reasonable assessment of the prospects of success of each proposed claim, and assess claims against the relevant eligibility criteria. Those duties were alleged to arise in contract and also in tort, either co-extensively with the contractual duties or independently.
3. The agreed Disclosure Issues 3A and 3B did not make further disclosure unnecessary. Although there was an overlap, Issue 5 focused specifically on risk assessments and eligibility criteria. Those matters were in issue on the pleadings and therefore warranted separate treatment in the disclosure exercise.
4. The court was also reinforced in its conclusion by practical considerations. The custodians, date range and existing search terms were the same for Issues 3 and 5, although additional search terms were proposed for Issue 5. The court made no determination at this stage about the adequacy or appropriateness of those search terms.
5. Disclosure was therefore to be provided on the basis that Disclosure Issue 5 was included.