England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
BUSINESS LIST (CHD)

		Royal Courts of Justice Rolls Building, Fetter Lane London EC4A 1NL
		5 November 2018

MR JUSTICE SNOWDEN :

Introduction

1. This is an application for non-party disclosure made by the Claimant ("West Ham") in the course of its action against the Defendant ("E20") which is the owner of the stadium originally built for the London Olympics and Paralympics in 2012 ("the Stadium"). West Ham is entitled to use the Stadium on match days during the football season in accordance with the terms of a 99-year Concession Agreement entered into with E20 on 22 March 2013 ("the Concession Agreement").
2. In the claim, West Ham and E20 disagree over the proper construction of the terms of the Concession Agreement which provide for the number of seats which West Ham has rights to use on match days in return for payment of a "Usage Fee" ("the Capacity Issue"). There is also a dispute as to whether E20 was obliged to apply for an amendment to the relevant licences and safety certificates ("Grantor Consents") which would enable West Ham to use up to 60,000 seats at the Stadium on matchdays, rather than the current maximum capacity which West Ham is able to use, which is 57,000 (the "Consents Issue").
3. The disclosure application relates to the Consents Issue. The application is made against London Stadium 185 Limited ("LS185") which is the company which operates the Stadium on behalf of E20, and as such holds the relevant Grantor Consents and has responsibility for matters such as safety at the Stadium. The key individuals at LS185 to which the application relates are the ex-Chief Executive Officer, Ms. Linda Lennon; the Chief Operating Officer, Mr. Graham Gilmore; and the ex-head of Safety and Security, Mr. Steve Riley.
4. A second application for non-party disclosure has also been made by West Ham against the London Borough of Newham ("LBN"). Subject to some amendments to the draft order, LBN has not objected to giving the disclosure sought. An employee of LBN, Ms. Sheila Roberts, is and was at all relevant times the chair of the Stadium's Safety Advisory Group ("SAG") and as such is responsible for the grant of the relevant General Safety Certificate ("GSC") for the Stadium.

The Claim

5. In the claim in relation to the Consents Issue, West Ham alleges that from about February 2017, E20 by its agent LS185, has been obliged under the express and implied terms of the Concession Agreement to apply to the SAG for a GSC for an increased capacity of 60,000, but that it has wrongly refused to do so. West Ham contends that E20's refusal to apply for the increase is a breach of a contractual obligation to make such application in response to a reasonable request from West Ham. That obligation is said to include an obligation to act in good faith and in accordance with the Standards of a Reasonable and Prudent Operator of the Stadium, which is a defined term under the Concession Agreement. It is alleged that E20's decision not to apply for a GSC for an increased capacity was both objectively unreasonable and was also not taken in good faith but with the improper motive of extracting more money from West Ham than the Usage Fee under the Concession Agreement. West Ham contends that such an application ought to have been made, and if made, would have been granted.
6. In brief outline, and so far as relevant for this application, West Ham's factual case is that from 2015 it was seeking an increase in the permitted capacity of the Stadium to 60,000. However, due to safety concerns, in August 2016 the relevant parties informally agreed that until there had been a number of incident-free West Ham football matches at the Stadium, an increased GSC permitting a 60,000 capacity would not be sought.
7. By early January 2017, a number of West Ham matches at the Stadium had passed without incident, and on the 3 January 2017, Mr. Angus Kinnear of West Ham, emailed Ms. Lennon at LS185, requesting that an application for an increased GSC be made. This appears to have prompted a telephone meeting on 5 January 2017 which may have involved Ms. Lennon, Mr. Riley and representatives of E20 (in particular Mr. Martin Gaunt).
8. West Ham's case is that during the remainder of January 2017, there was a series of discussions and emails between the relevant personnel at E20, LS185 and West Ham. West Ham contends that the evidence indicates that all those involved believed that an application for an increased GSC should be made and would be likely to be granted.
9. These communications included an email exchange between Ms. Lennon of LS185 and Sheila Roberts of LBN on 23 January 2017 in which Ms. Lennon sent some documents to Ms. Roberts and asked for an indication of whether they would meet Ms. Roberts' requirements for an application for an increased GSC. Ms. Roberts replied on 26 January 2017 ("in response to your request for clarification on the documents that the certifying authority would like to see") declining to give confirmation that the documents were adequate, raising a number of questions and setting out the consultation process that would be followed once an application had been formally submitted.
10. At about the same time, on 25 January 2017 Mr. Gaunt of E20 chased Mr. Riley of LS185 for details of the operational costs of a capacity increase so that advice could be given to E20's board at a meeting scheduled for 31 January 2017.
11. On 31 January 2017 a board meeting of E20 took place, the minutes of which have been disclosed by E20, but in heavily redacted form. What is clear is that Stadium capacity was discussed. Later the same day a meeting between key representatives of West Ham, LBN and E20 took place, in which, according to minutes taken by West Ham, a representative of E20 told West Ham that the E20 board had taken the decision not to apply for a licence for an increased capacity until a commercial agreement between the parties had been concluded and because E20 had deemed it to be unsafe. The reference to a commercial agreement being concluded reflected the difference of view which had surfaced between the parties by this time as to the maximum capacity to which West Ham was entitled under the Concession Agreement.
12. West Ham's case, in essence, is that the preparations being made between E20, LS185 and LBN up until 26 January 2017 showed that at least within E20 and LS185, an application for a GSC for a capacity of 60,000 was being viewed as justified and was likely to succeed, and that the subsequent decision of E20's board on 31 January 2017 was unjustified and taken unreasonably and in bad faith.
13. E20's case, in briefest outline, is that it was not and is not required by the Concession Agreement to seek an increase in capacity but is entitled to negotiate an increased usage fee in return for an increase in the capacity of the Stadium. It also contends that when E20's board made its decision not to apply for an increased GSC, it genuinely believed that there were safety issues and that the costs to E20 of an increase in capacity would be greater than the benefits. E20 pleads that on 31 January 2017 its board commissioned a specialist report on safety, and that this confirmed that testing of a new plan for spectator egress from the Stadium would be required.

The Application

14. The trial of this claim is due to commence in 14 days' time, on 19 November 2018.
15. In its application, which was issued as long ago as 7 September 2018, West Ham sought disclosure pursuant to CPR 31.17 of four categories of documents from LS185. Those categories were substantially revised on 14 September 2018 following communications between the parties, and although no formal application to amend has been made, the parties addressed argument on the revised categories.
16. I add that, as must be right, West Ham has offered from the outset to pay for the reasonable costs of LS185 in carrying out the disclosure exercise.

CPR 31.17

17. CPR 31.17 states, in material part,

"(1) This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings.

(2) The application must be supported by evidence.

(3) The court may make an order under this rule only where-

(a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and

(b) disclosure is necessary in order to dispose fairly of the claim or to save costs.

(4) An order under this rule must -

(a) specify the documents or the classes of documents which the respondent must disclose; and

(b) require the respondent, when making disclosure, to specify any of those documents –

(i) which are no longer in his control; or

(ii) in respect of which he claims a right or duty to withhold inspection.

(5) Such an order may –

(a) require the respondent to indicate what has happened to any documents which are no longer in his control…"

18. Although not used in CPR 31.17, the test of whether documents are "likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings" is often referred to in the authorities as the test as to whether the document is "relevant". I shall use it in the same way.

Category 1

19. In its draft amended form, Category 1 seeks disclosure of,

"All emails sent or received by Ms. Lennon, or Mr. Graham Gilmore, or Mr. Stephen Riley within the date range 1 January 2017 to 28 February 2017 which address a potential amendment of the General Safety Certificate for the Stadium to increase its permitted capacity to 60,000."

The application also includes a schedule of electronic search terms which West Ham contend should be applied to the relevant custodians' emails in two passes so as to isolate the documents for manual review that may fit the description of the class of documents to be disclosed.

20. That formulation replaced the original form in which the application was issued, which sought any documents (not just emails) generated over a wider date range and without naming specific persons, but identifying with greater specificity the subject matter of the documents sought: e.g. documents (a) "which include an analysis of the costs associated with an increase in capacity at the London Stadium from 57,000 to 60,000 or the revenue that might be generated by such an increase…"; (b) "relating to whether it would be safe or unsafe for there to be a capacity of 60,000 at the Stadium", and (c) "evidencing either LS185's or E20's reasons for refusing to make an application for a General Safety Certificate permitting a capacity of 60,000 at the Stadium."
21. For West Ham, Mr. Downes QC submitted that documents within the class would support West Ham's case that the application for a GSC for an increased capacity was being actively progressed within E20 and LS185 and that this would assist in showing both that it was reasonable for E20 to have made such an application and that, if made, it would have been granted. Mr. Downes said that the order for third party disclosure was necessary because there had, surprisingly, been little, if any, disclosure by E20 of contemporaneous documents explaining the decision of its board. He argued that it was quite likely that the reasons for the decision of E20's board would have been explained to those at LS185 who had been involved in preparing the application, with the result that they might well have referred to it in internal emails which would not have featured in E20's disclosure. He contended that disclosure of such emails from a limited number of custodians covering a narrow date range was both proportionate and achievable in relatively short order, and was necessary fairly to dispose of West Ham's claim.
22. For LS185, Mr. Crangle resisted an order in the terms sought for a number of reasons.
23. First, he contended that the order sought fell foul of the principle set out by Aldous LJ in American Home Products v Novartis [2001] FSR 784 as interpreted and applied by the Court of Appeal in Three Rivers DC v Bank of England [2003] 1 WLR 210. In the Three Rivers case, the Court of Appeal stated, at [36],

"36. Aldous LJ, with whose judgment Robert Walker LJ and Sir Anthony Evans agreed, accepted that the court had no power to make an order under rule 31.17 in respect of a class of documents if it were established that there were documents within the class that were not relevant to any issue in the proceedings—in the sense that they did not satisfy the threshold condition of "documents … likely to support the case for the applicant or adversely affect the case of one of the other parties". That, if we may say so, must be right. The rule gives no power to order a non-party to disclose documents which do not meet the threshold condition in sub-paragraph (a) of paragraph (3); and that cannot be circumvented by including documents which do not meet that threshold condition in a class which also includes documents which do meet that condition. In particular, the threshold condition cannot be circumvented by an order which puts upon the non-party the task of identifying those documents within a composite class which do, and those which do not, meet the condition."

24. The simple point made by Mr. Crangle was that, as drafted, an order for disclosure of emails "which address a potential amendment of the Safety Certificate" would include emails dealing with uncontentious and administrative matters such as the form in which the application needed to be made and the mechanics of the application process, and would not be limited to emails concerning the substance of the application. Mr. Crangle submitted that emails of the former type would not be likely to support West Ham's case or adversely affect E20's case, and for that reason I would have no power to make the order in the form sought under CPR 31.17.
25. I agree with Mr. Crangle that Novartis and Three Rivers makes it clear that I cannot make an order in a form that catches both documents that are likely to support West Ham's case and those that are not likely to support its case. I also agree with him that as drafted, the order sought is too wide because it would catch essentially administrative documents mentioning the application, but which would not be likely to support West Ham's case (or adversely affect E20's case) in any material way.
26. In that regard I do not accept Mr. Downes' submissions that Mr. Crangle was simply raising a hypothetical objection, and that LS185 had not pointed to any actual documents falling within the suggested class that would not be relevant under the test in CPR 31.17. Put simply, it is for West Ham to establish that I have the power to make the order that it seeks: it is not for LS185 to prove that it is too wide.
27. That said, I accept Mr. Downes' rather belated submission in reply that the objection of LS185 in this respect is of a rather limited nature, and that it can, with comparative ease, be addressed by a drafting change. Mr. Downes suggested that I should adopt a proviso that documents of a purely administrative nature should be excluded from the class but for my part, I think that the appropriate drafting should be more positive in nature so as to define the class of documents to be produced in this way,

"All emails sent or received by Ms. Lennon, or Mr. Graham Gilmore, or Mr. Stephen Riley within the date range 1 January 2017 to 28 February 2017 which address the substantive contents, merits of, or reasons for E20's decision not to make an application for, an potential amendment of the General Safety Certificate for the Stadium to increase its permitted capacity to 60,000."

28. Mr. Crangle also resisted disclosure on the basis that emails of the type sought were not likely to support West Ham's case or adversely affect E20's case, because the only real question was what had motivated E20's decision, and LS185 was not a party to that. He also suggested that what LS185 might itself have thought about the merits of an application was irrelevant given that there is due to be extensive expert evidence at trial on the objective merits or demerits of such an application, and whether it would have been made by a hypothetical reasonable and prudent stadium operator.
29. Whilst I accept Mr. Crangle's point that the decision not to make the application for an amendment to the GSC was taken by E20 and not by LS185, I agree with Mr. Downes that it is perfectly possible that the reasons for that decision were reported to LS185 staff and may have been referred to in internal LS185 communications. Moreover, to the extent that LS185 staff had formed any views on the substance or merits of such an application and communicated them internally, I think such views would be likely to support West Ham's case that such application was viable and/or likely to be granted. Although there will be expert evidence on that very topic, in my judgment it would plainly be relevant for the experts and the trial judge to know what the actual Stadium operator thought.
30. Mr. Crangle also submitted that the evidence demonstrated that such an order would not result in any relevant emails being disclosed. His first point in this respect was that LS185 no longer had access to any emails of Ms. Lennon and Mr. Riley, because they had all been routinely deleted three months after those individuals had left employment with LS185 in accordance with the policy of LS185's French parent company which was responsible for maintaining its electronic systems. Mr. Crangle's second point was that although Mr. Gilmore was still employed by LS185, this was not in a role in which he would be likely to have any relevant emails.
31. I do not accept these submissions. I regard the suggestion that LS185 would routinely delete all emails, including business emails, of an employee only three months after that person had left its employment as astonishing and, unless made out upon clear and unambiguous evidence to that effect, frankly incredible. Quite apart from the obvious problems that such a policy would create for LS185's business continuity and any legal requirements to maintain business records, it would leave the company wholly exposed with an incomplete record if there were any subsequent complaints or litigation.
32. In fact, I do not think the evidence supports Mr. Crangle's submission in any event. It amounted to a reference by Mr. Keep, an e-disclosure expert at LS185's solicitors, to a translation from the original French that LS185's parent company's data policy was to deactivate ex-employees' "user accounts" on departure, and that,

"after a period of three months …the account of the user is automatically deleted, and their personal data of the servers automatically deleted, including the mailbox."

33. From that Mr. Keep deduced that the mailboxes of Ms. Lennon and Mr. Riley would have been deleted, and he noted that they appeared not to have been migrated to a new Office 365 system in February 2018 when active email accounts were migrated.
34. Whilst I well understand that there might have been a policy to delete personal data after a short period, I simply do not think that evidence states in clear and unambiguous terms that all business emails of Ms. Lennon and Mr. Riley have been irretrievably deleted, rather than simply their mailbox facility being deactivated and then that mailbox facility being deleted and not migrated.
35. It is of course the case that if upon proper inquiries being made it is discovered that all business emails of Ms. Lennon and Mr. Riley really have been deleted from all LS185's systems and their own devices, so that they cannot be retrieved, then LS185 will be unable to produce any relevant emails to or from Ms. Lennon and Mr. Riley. If that is the case, I will, pursuant to CPR 31.17(5), require an unambiguous statement from LS185 to explain precisely how and when that occurred in fact rather than simply by deduction from a translation of the parent company's data policy. To ensure that such statement has been made after full inquiry and by a responsible officer of the company, I will direct that it should be made in the form of a witness statement verified by a statement of truth by the Chief Executive Officer of LS185.
36. As I have indicated, no such potential problems exist in relation to Mr. Gilmore, who is still employed by LS185. However, Mr. Crangle pointed to the very limited references to Mr. Gilmore in the evidence and submitted that Mr. Gilmore's role as Chief Operating Officer would not have put him in the front line in relation to issues such as safety and determining the costs and benefits of an application for a capacity increase. That may be so, but Mr. Gilmore reported to Ms. Lennon and was Mr. Riley's immediate line manager, he was copied into some emails concerning a possible increase in the Stadium's capacity, and in my view it is possible that he might have been copied into some of the relevant emails sought. Especially in light of the possible difficulties over Ms. Lennon and Mr. Riley's emails, I consider that it is appropriate that Mr. Gilmore's emails for the relevant period be searched.
37. Mr. Crangle further submitted that disclosure from LS185 was not necessary for the fair disposal of the claim because West Ham had already had disclosure from E20 and would be getting third party disclosure from LBN. He stressed the exceptional nature of an order for disclosure against a third party as opposed to a party to the litigation.
38. I recognise that a third party disclosure order needs special justification above and beyond an order against a party to the proceedings. However, I think it is justified on the facts of this case. LS185 is not an arm's length third party, but was closely involved in the relevant events as E20's agent. Very few documents have been disclosed by E20 relating to the critical decision by its board, and for the reasons that I have indicated, I do not think that all of the relevant documents that the three custodians at LS185 might have generated will necessarily be duplicated at E20 or LBN. I therefore do think that disclosure of LS185's relevant documents is necessary for the fair disposal of West Ham's claim.
39. Mr. Crangle also submitted that the application by West Ham has been made late, and that it would impose a disproportionate burden upon LS185 to conduct the disclosure exercise in the limited time before trial starts in two weeks' time. In that respect, Mr. Brooksbank and Mr. Keep of LS185's solicitors gave evidence suggesting that there would be technical and legal difficulties with the process of obtaining the electronic data representing the universe of emails falling within the relevant period, mounting it on the relevant search platform, applying West Ham's suggested search terms to produce a selection of deduplicated documents for manual review, and then conducting the manual review. They suggested that the whole process would be disproportionately time-consuming and disruptive of LS185's business. They did not, however, give any estimate of the time that might be needed to carry out the necessary steps.
40. I do not accept that evidence. Although made very close to trial, it seems to me that the process envisaged is confined and should be well within the capacity of any competent edisclosure provider and a firm of solicitors of Pinsent Masons' resources and standing – especially since the reasonable costs of carrying out the exercise in a short timescale will be paid for by West Ham.
41. As to the supposed technical difficulties, the source of the data stems from only last year and uses a modern system with which any competent edisclosure provider will, in the ordinary course, be familiar; the number of emails in the universe is itself likely to be relatively small given the limited number of custodians and date range; and the search terms suggested by West Ham seem on their face to be appropriate. I therefore do not envisage that the selection of documents for manual review will be very large. Further, since the review process which takes most time will be carried out by lawyers at Pinsent Masons who have familiarised themselves with the issues in the case, there will not be any significant disruption to LS185's business beyond the limited exercise of gaining access to the data in the first place.
42. Again, however, to cater for the unforeseen I will give liberty to LS185 to apply in the event that, contrary to expectations, the volume of documents produced for manual review is excessively large so that such review cannot be done in the time available, even with the resources available to Pinsent Masons.
43. Finally, I am wholly unimpressed by the suggestion in the evidence that LS185 might have some ill-defined difficulties under French law of obtaining access to its own electronic business data due to the fact that it is administered by its parent in France (a multi-million euro enterprise). That does not dissuade me from making the order. There can be liberty to apply if real difficulties exist, but I will need a far clearer account of the problems and why steps cannot be taken to overcome them than has been provided to date.

Category 2

44. Category 2 simply required production of the "request for clarification" sent by Ms. Lennon to Ms. Roberts at LBN as mentioned in the email dated 26 January 2017 by Ms. Roberts to which I have referred. The email exchange between Ms. Lennon and Ms. Roberts is plainly relevant to events at a time which is central to the allegations in the case.
45. When the email chain leading to this email is examined, it would seem fairly obvious that the "request for clarification" was no more than a reference to the email dated 23^rd January 2017 and timed at 10.09. I was surprised that this point had not been pursued by either side at any earlier stage, and after I urged LS185 to contact Ms. Lennon to discover whether this was so, she emailed back overnight to confirm that this was what she was referring to. Mr. Downes thereupon realistically accepted that it was not necessary to pursue this paragraph of his application.

Category 3

46. Category 3 seeks any note or record of the meeting (or telephone call) attended by Ms. Lennon and possibly Mr. Riley on about 5 January 2017 to which I have referred. That call is, I think, plainly relevant to events at a time which is significant to the allegations in the case, because it took place immediately after West Ham's request for an application for an increased GSC was made.
47. In addition to giving the confirmation to which I have referred above in relation to Category 2, Ms. Lennon also explained that her practice was to make notes of meetings which she chaired on her ipad and that she does not have any such notes from the relevant times in 2017. It is also the case that the order which I have made against LBN will produce any note compiled by Ms. Roberts.
48. It remains the case, however, that Mr. Riley is described in the documents as having been on the call, and may have made a note of it. I do not accept the submissions which Mr. Crangle made to the effect that any such record would have been deleted after Mr. Riley left LS185. I have already dealt with the position as to Mr. Riley's emails, and there is nothing in the evidence dealing with what might have occurred if such record had been created as a free-standing electronic or hand-written document rather than in an email.
49. In short, I consider that Category 3 is tightly focussed to a single relevant document and I consider that disclosure of such a document, if it exists, is necessary to dispose fairly of this case. If such a document did exist and yet has been destroyed or deleted, then I will require the same verification of that position as in relation to Category 1.

Category 4

50. Category 4 seeks a copy of Ms. Lennon, Mr. Gilmore, and Mr. Riley's work diaries for the period December 2016 to March 2017.
51. As I have indicated, the wording of CPR 31.17 makes clear that it is only documents that are relevant in the sense that they are likely to support the applicant's case or adversely affect the case of another party that can be ordered to be disclosed. Documents from a third party which might merely go to the background, or which might lead to a train of inquiry cannot be ordered to be produced under CPR 31.17. In short, I agree with the analysis to that effect by Charles Hollander QC in his book on Documentary Evidence (13^th ed.) at para 3-07.
52. It seems to me that the diaries in this case fall outside the scope of CPR 31.17 for this reason. Even assuming them to be a single document in each case, they would cover a wide range of dates and by their nature are unlikely to do anything other than provide background information as to the appointments of the three individuals during the period in question. Mr. Downes submitted that the diaries would be important to show who the staff at LS185 might have been meeting over the period, and thus to support West Ham's case that LS185 was busy working on preparing the application for an increase in capacity. I very much doubt that simple diary entries would be likely to show that, or that they would materially advance West Ham's case in this respect. Instead I would regard them as, at best, "train of inquiry" documents. Neither is good enough to justify an order under CPR 31.17.

Conclusion

53. I will grant West Ham's application in part and in an amended form.
54. In the absence of any specific evidence as to impracticality, and because LS185 have plainly had notice, in general terms, of what might be required for some time, but seem to have chosen to raise a considerable number of objections rather than to investigate the practicalities of compliance with what might be required, I will make the order for disclosure to take place by 4 pm next Tuesday 13 November 2017. I shall require any application explaining why that timetable cannot be complied with to be made to me by 4 pm this Thursday 8 November 2018, for resolution on Friday this week.