Município de Mariana & Ors v BHP Group (UK) Ltd & Anor (Ruling on disclosure)

An order for extended disclosure may be varied where the applicant establishes that the variation is necessary for the just disposal of the proceedings and reasonable and proportionate. The court must apply that test in accordance with the overriding objective. Relevant considerations include the nature and complexity of the issues, the importance of the case, the likely probative value of the documents, the volume of material, and the ease and expense of searching for and retrieving it. Disclosure may properly extend to individuals who are not expressly identified in a particular pleading section where the pleadings clearly raise issues concerning their knowledge and conduct.

The claimants applied to extend the disclosure issues and the disclosure review document in ongoing proceedings concerning the collapse of a Brazilian mining structure. The application concerned Model C requests for documents relating to the employment, agency or contractor relationships between the defendants and specified individuals, together with documents concerning their performance assessment, monitoring and incentives.

The defendants accepted disclosure in respect of individuals expressly identified in specified sections of the claimants’ pleading, but opposed extending it to nine additional individuals identified in the re-amended reply. The central issue was whether those individuals fell within the pleaded issues and whether extending disclosure to them was necessary, reasonable and proportionate.

1. Applicable test. Under paragraph 18 of Practice Direction 57AD, the court may vary an original extended-disclosure order at any stage where the variation is necessary for the just disposal of the proceedings and is reasonable and proportionate.
2. The test must be construed in accordance with paragraph 6.4 of Practice Direction 57AD. The court must have regard to the overriding objective, including the nature and complexity of the issues, the importance of the case, the likelihood that documents will have probative value, the number of documents involved, and the ease and expense of searching for and retrieving them.
3. Application. The additional individuals were not expressly named in the relevant pleading sections, but the re-amended reply clearly pleaded issues concerning their knowledge and conduct in the period preceding the collapse. Those issues would have to be addressed at trial.
4. Extending the Model C requests to cover the additional individuals was reasonably necessary and proportionate. It would not impose an onerous burden on the defendants, and it was convenient for disclosure concerning employment and performance evaluation to cover all relevant individuals identified in the pleadings.
5. The court ordered extended disclosure in relation to Model C requests 1 and 2.

First-instance ruling on the claimants’ application to extend disclosure. No prior appellate decision is stated in the judgment.