Citation: [2024] EWHC 177 (TCC)
Simon Taylor and Tom Walker (instructed by Clarke Willmott LLP) acted for the Claimant in a public procurement dispute in which the court was asked to give guidance on unresolved disclosure issues. The case ultimately clarified the proper procedure for seeking disclosure guidance and highlighted the consequences of failing to follow it.
Background
The proceedings arose in the context of a public procurement challenge. At a case management conference on 21 April 2023, the court ordered the parties to give standard disclosure by 30 November 2023 and directed that by 2 June 2023 they should agree the scope of electronic disclosure and keyword searches. The order further provided that, if agreement could not be reached, the parties were to request a hearing to resolve any outstanding disclosure issues.
The deadline for reaching agreement was later extended to 21 March 2024. By a consent order dated 12 July 2023, the parties were directed to request the court to fix a hearing to determine outstanding disclosure issues.
The Claimant subsequently wrote to the court requesting such a hearing. However, no formal application was issued on form N244, and the correspondence failed to identify the specific questions on which the Claimant sought guidance.
Decision (Pepperall J)
Judgment accordingly.
Disclosure guidance
- The court stressed that parties seeking disclosure guidance must issue an application notice that clearly identifies the issue on which guidance is sought. Under CPR PD 57AD para 11(2), such an application must also confirm that the point is one on which (a) there is a significant difference between the parties; (b) the parties require the court’s guidance without a formal determination; and (c) the point is suitable for guidance either on the papers or, save in substantial claims, within a one-hour hearing with no more than 30 minutes’ pre-reading time. While CPR PD 31B contains no equivalent provision, the judge held that the same disciplined approach should be followed in Part 31 cases.
- In this case, the Claimant failed to issue any application notice, instead relying on unfocused correspondence. This caused delay, obscured the real issues until shortly before the hearing and deprived the court of the ability to decide whether the matter could be determined on the papers. The lack of a formal application also encouraged the parties to raise issues without evidence, which the judge held was unacceptable.
Costs
- Consistent with the usual approach under CPR PD 57AD, costs as between the Claimant and the First Defendant were ordered to be costs in the case, reflecting criticism of both parties’ handling of disclosure. However, no meaningful progress was made on the disclosure issues against the Second Defendant, and it was put to unnecessary and avoidable cost. Accordingly, the court ordered the Claimant to pay their costs of the hearing but not the ordinary litigation costs of engaging through correspondence on the disclosure issues.
The judgment can be found here.
