"Specifically mentioned": High Court clarifies rules about documents referred to in evidence under the Disclosure Pilot
In a judgment that has recently become publicly available (Michael Wilson and Partners Ltd v Emmott and others  EWHC 730 (Comm)) the High Court rejected the claimant's request for disclosure of documents referred to in a witness statement which were "bound to exist". In doing so, the court re-emphasised the importance of clarity and specificity in relation to requests for disclosure.
The claimant, Michael Wilson and Partners Limited, sought an order under paragraph 21 of the PD 51U disclosure pilot (PD51U.21) requiring two of the defendants to disclose "no less than nine sub-categories of documents" purportedly referred to in witness statements (the witness statements of the late Mr Michael Robinson, at one time retained by the first defendant and Mr Philip Shepherd QC, one of the other named defendants).
The defendants were an individual (John Forster Emmott) and the lawyers who had represented him in other proceedings also involving the claimant. In these other proceedings, costs orders had been made against the claimant. The claimant issued a claim alleging that the defendants had dishonestly conspired to make claims for costs orders to which they were not entitled. The defendants applied to strike out this claim. The witness statements in question were filed by the defendants in support of the strike out application.
HH Judge Pelling QC (HHJ Pelling) rejected the claimant's application for disclosure of the documents that it asserted were referred to in the witness statements.
HHJ Pelling explained that PD51U.21 acts as a "self-contained code" by reference to which a party in receipt of a witness statement can seek the disclosure of documents mentioned in the statement. This is subject to two requirements: (i) the document(s) for which disclosure is sought must be "mentioned"; and (ii) assuming that (i) is established, the party seeking disclosure must satisfy the court that the order is "reasonable and proportionate".
In this case, the claimant requested disclosure of documents which it said were "bound to exist", based on the content of the Defendants' witness statements. HHJ Pelling criticised the "extravagant terms" of this approach. He held that the starting point should be a witness statement which is alleged to contain mention of otherwise undisclosed documents. These documents (or categories of documents) should be identified and then consideration given as to whether disclosure would be reasonable and proportionate.
HHJ Pelling noted that the definition of "mentioned" in PD51U.21 is the same as in CPR 31 and therefore "mentioned" must really mean "specifically mention[ed]". He expanded on this point, highlighting the claimant's reliance on the note at paragraph 31.14.4 of the White Book to justify the proposition that where a witness statement refers to other documents which themselves contain additional references, then the recipient of the statement is also entitled to ask for these additionally referenced documents. HHJ Pelling held that this was not a construction which was "reasonable or appropriate to adopt". The entitlement to disclosure at 31.14.4 only caught those documents which were actually mentioned in or attached to a witness statement. Further, HHJ Pelling stated that the claimant's approach would increase costs and run counter to the overriding objective. He noted that the claimant's desired conclusion would be "contrary to principle" because it could not be said that a document referred to within a document referenced in a witness statement was being relied upon by that witness as part of their evidence.
As noted, above, the claimant sought nine different sub-categories of documents in relation to Mr Robinson's statement. HHJ Pelling rejected this request on the basis that (i) a mere reference to a retainer did not constitute it having been "specifically mentioned"; and (ii) that the claimant's request was "expressed in the most general terms." In relation to Mr Shepherd QC's witness statement, HHJ Pelling again rejected the claimant's request for disclosure of retainer documents, conditional fee agreements, and funding deeds. HHJ Pelling held that the witness statement did not mention a written retainer and that disclosure relating to funding was not appropriate. HHJ Pelling did, however, suggest that it would be appropriate for Mr Emmott (the first defendant) to file a brief witness statement explaining why privilege was being asserted. HHJ Pelling also flagged that it would not be "reasonable or proportionate" to order Mr Shepherd to produce a document "which he has not seen and does not possess".
HHJ Pelling did agree with the claimant in relation to a matter of legal professional privilege. The Claimant submitted that it was wrong to characterise retainer letters or conditional fee agreements as privileged by their nature. HHJ Pelling agreed with this and explained that the notion of inherent privilege would go much further than the authorities justify. HHJ Pelling agreed with the opinion of FTT Judge Barbara Mosedale in Edward C Behague v The Commissioners for Her Majesty's Revenue & Customs  UKFTT 647 (TC) (6 November 2013)1, that "everything depends upon what the actual letter says".
We note that the judge's position here appears consistent with the judgment in Hoegh v Taylor Wessing LLP  EWHC 856, in which an application for the disclosure of documents brought under paragraph 21.1(2) PD51U similarly failed because the Court held that no specific documents had been referred to in a witness statement where mention was made of a firm of accountants undertaking ‘a review’ of a party’s tax affairs2.
Following the announcement of 15 July 20223, we now know that the Disclosure Pilot is here to stay and that it will become a permanent part of the CPR as the new PD57AD (currently PD51U) from 1 October 2022 onwards. The ever-growing body of case law on the Disclosure Pilot will therefore continue to be relevant. This case is helpful in providing some guidance on how the courts are likely to approach applications for disclosure where documents appear to be "mentioned" in a witness statement. Moreover, it is clear that this decision is not confined to an application under PD51U.21, but that it applies more generally to "specific" disclosure requests in such circumstances.
Clarity and specificity are clearly essential when it comes to disclosure requests. It is not acceptable to make a very "general" request, instead requests should: (i) specify that a witness statement appears to mention undisclosed documents; (ii) identify those documents (or categories); and (iii) then explain why the request is reasonable and proportionate. The definition of "mention" should be adhered to on the basis that this must mean "specifically" mentioned. Further, inherent privilege cannot be assumed when it comes to retainer letters and conditional fee agreements just because of the nature of these documents: whether they actually attract privilege will depend on their contents.
2See also Rubin v Expendable Ltd  EWCA Civ 59 and Dubai Bank v Galadari (No 2)  1 WLR 731 (wherein the Court held that a document was not ‘mentioned’ in a witness statement unless a direct allusion was made to it).