Considering bringing an RFI application? Is it strictly necessary?

31 January 2023. Published by Parham Kouchikali, Partner

Andrew Ayres KC and Andrew Dinsmore (Twenty Essex), instructed by Parham Kouchikali and Suzie Kurdi of this firm, successfully resisted a Request for Further Information (RFI) in the High Court.

Mr Justice Jacobs observed that this was the first RFI hearing that had come before him in over four years on the Bench, and that such applications are to be discouraged. The message from the Court is to carefully consider whether an application is strictly necessary to understand the case against your client and/or to prepare your own case bearing in mind the Commercial Court's current workload.

The Defendants had issued a series of requests for further information. The first request in respect of the Particulars of Claim was issued prior to service of the Defence, the second and third were issued in respect of the Reply and the fourth RFI, which was the subject of the application, was a combination of the requests that the Defendants considered had not been adequately answered. Although the Claimants had provided responses to the first, second and third RFIs, they declined to provide responses to the fourth RFI on the basis that the requests had either been answered already, or went beyond what was strictly necessary for the Defendants to understand the case they have to meet.

At the hearing, the Defendants submitted that the further information requested was necessary to enable the Defendants to understand the case against them, to prepare their Defence and to consider whether or not to strike out parts of the pleaded case. The judge was very clear that the test for ordering further information is that set out in paragraph D14.1(c) of the Commercial Court Guide which provides that "the Court will only order further information to be provided if satisfied that the information requested is strictly necessary to understand another party's case". In practical terms, this means that an applicant for further information needs to come to the court and explain precisely why they do not understand an aspect of the case against them and why it is material. The judge observed that in this case, he had read the pleadings twice and the case being advanced was clear. 

The judge was also conscious of the stage the proceedings had reached. Pre-disclosure, the level of detail in the Claimants' pleading was considered by the judge to be as expected, for the Commercial Court, if not more detailed. Where the case is clearly set out, the judge did not consider it sensible as a matter of case management to start dissecting the pleading and analysing sentences or paragraphs in isolation. He also commented that, if you stand back and look at this whole case as a matter of common sense, it is a huge fraud case and there will be disclosure from both sides which is likely  to change the case on both sides. It is important to recognise that reality and consider the requests in that context.

Where requests were effectively requests for disclosure, the proper course was to deal with those matters in the context of the Disclosure Review Document (DRD), not an RFI. Similarly, if the Defendants, or any of them, consider that some paragraphs are susceptible to being struck out, that is the appropriate application, not an RFI. Accordingly, the judge declined to order all but one of sentence of the 15 pages requests that had been made by the Defendants.  The Judge awarded the Claimants their costs of the application.

The Applicants were (1) Formal Holdings Limited, (2) Mr Malcolm King and (3) Mr Nicholas King, the Defendants in the proceedings. The Respondents were (1) Steenbok Newco 10 SARL and (2) Ibex Retail Investments Limited, the Claimants in the proceedings. Claim number CL-2021-000321.

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