Crane Bank Limited & Ors v DFCU Bank Limited & Ors

Under CPR Practice Direction 57AD, paragraph 17, the court may act where there may have been a failure adequately to comply with an order for Extended Disclosure. The applicant need not establish actual non-compliance, although more than a general suspicion is required. Whether a low volume of disclosure indicates a deficient process is fact-dependent. An order under paragraph 18 has a higher threshold: variation must be necessary for the just disposal of the proceedings, as well as reasonable and proportionate. Disclosure relief must remain confined to the issues and models covered by the existing order. The court may require further disclosure or clarification where the evidence demonstrates a material and proportionate need, but will not order explanations or searches that merely duplicate information already certified or supplied.

The claimants applied under paragraphs 17.1 and 18.1 of CPR Practice Direction 57AD for further disclosure and related witness statements concerning the disclosure obligations of the first and second defendants. The application concerned customer files, searches of a substantial electronic drive, third-party custodians, underlying documents, written-off loan information and reports said to have been provided to the Bank of Uganda.

Some relief was agreed or abandoned before the hearing. The remaining disputes concerned whether further orders were justified, the scope of an existing consent order, the selection and timing of additional customer files, and whether further explanations were necessary for the just disposal of the proceedings.

1. Applicable thresholds. The application could be considered under either paragraph 17 or paragraph 18. Paragraph 17 applies where there has been or may have been a failure adequately to comply with an Extended Disclosure order. The applicant need not prove actual breach, but must show more than a general suspicion. The significance of a small number of disclosed documents depends on the circumstances of the case. Paragraph 18 requires the applicant additionally to show that variation is necessary for the just disposal of the proceedings.
2. Scope of the existing order. The consent order requiring Model C disclosure for Issue 22 did not displace the wider Model D obligations for Issues 1, 2, 3 and 17. The customer files therefore engaged the wider disclosure issues. The defendants’ submission that there had been no breach was rejected.
3. Customer files. Disclosure of the 40 requested customer files was justified. The parties were directed to liaise on an objective and representative basis for selecting 20 additional files. The proposed selection by reference to high loan provisions risked being insufficiently representative. The 40 files were to be disclosed in stages, with the additional files due by 3 April 2026, subject to liberty to apply.
4. Ancillary requests. The court declined to require a further witness statement explaining searches or unavailable files where the signed Disclosure Certificate already provided the relevant information and there was no reason to doubt it. Disclosure of dfcu material added after takeover was not required, although documents concerning post-acquisition restructuring of loans were not opposed and were to be addressed.
5. Electronic and third-party searches. The claimants had not shown a possible disclosure failure concerning the Z drive or third-party custodians. Detailed accounts of intended searches, third-party retention policies and individuals contacted were not reasonable or proportionate. The court nevertheless required clarification of whether two separate sets of reporting to the Bank of Uganda existed, given the significance of the non-performing loans.
6. Orders. The agreed and ordered disclosure, including required witness statements, was to be completed within three weeks of the order, subject to the separate determination of the restructuring documents issue if the parties could not agree.

First-instance decision. The judgment refers to the wider background in Crane Bank Limited & Ors v DFCU Bank Limited & Ors [2025] EWHC 1915 (Comm), but no appellate history is stated.