Hitendrakumar Patel v Michael Parker & Ors

Disclosure applications made after trial commencement will ordinarily be refused where the material has long been available and the application should have been dealt with before the pre-trial review. The court must also control disclosure so that it remains proportionate and relevant. It may refuse requests which are wide-ranging, oppressive, intrusive into private affairs, or unnecessary to determine the issue in dispute. Disclosure should be confined to material genuinely required to test the relevant issue, without imposing a substantial exercise that distracts from the trial.

The first defendant applied on the third day of trial for disclosure in relation to three confirmation letters, accounting records said to evidence a running account, and numerous bank transactions involving the claimant, his wife and Smartway. Some documents had been available for months, while other bank statements had been disclosed shortly before trial. The claimant offered a limited audit trail report for two relevant nominal codes. The issues were whether the application was too late and whether the requested disclosure was necessary, proportionate and relevant.

1. The application was dismissed. The court refused the requests relating to the confirmation letters and nominal codes because they were made during the third day of trial. Disclosure applications of this kind should ordinarily be made months before trial. If outstanding at the pre-trial review, they should be resolved there so that the parties and court can begin the trial without procedural disputes.
2. Once a trial has begun, the court must be alert to an application requiring the other party to undertake a significant disclosure exercise. Such an exercise may consume resources, time and concentration needed for the trial, and may undermine a level playing field.
3. The requests were also excessive in scope. The request concerning the confirmation letters sought more than was necessary to test their authenticity. The request for records concerning all nominal codes was too wide and intruded into the claimant’s private business affairs. Information relating to the two nominal codes said to concern the project was sufficient for the stated purpose, particularly through the proposed audit trail report.
4. The request for correspondence concerning every payment shown in the bank statements was likewise unnecessary. The issue was whether there was an authentic debit-and-credit running account. It was unnecessary and disproportionate to require disclosure concerning every transaction, especially after trial had started.