England and Wales High Court (Technology and Construction Court) Decisions

IN THE HIGH COURT OF JUSTICE
TECHNOLOGY AND CONSTRUCTION COURT

		St Dunstan's House, 133-137 Fetter Lane, London EC4A 1HD
		29th July 2011

MR JUSTICE AKENHEAD:

1. This is a hearing for a pre-trial review with the trial due to commence in November, starting on 7^th November, a 10 to12-day trial.
2. The claim and counterclaim relate to drilling and other geotechnical services provided by the claimant for the defendants. By saying that, I am not excluding the contractual arguments as to who the contract is with which are the issues contained in the pleadings.
3. The claimant is an American company and the defendant is a company incorporated in Australia and the claimant's case is that the defendant instructed it to perform gas content analysis and permeability testing in respect of three wells in South Wales.
4. The claimant claims in these proceedings what is said to be the outstanding balance for the work which it did. It is met by a substantial counterclaim in which the defendant alleges that the work and services provided by the claimant were deficient in a number of respects and it is quite clear, certainly on the pleadings, that the claimant broadly reported that the site in question based on the results which it believed it had secured, would be inappropriate for development for coal gas and the like.
5. The counterclaim is essentially to the effect that because the claimant has interpreted or inappropriately carried out the work and services it was employed to carry out, it failed to appreciate that the site was a viable site. I am paraphrasing very much.
6. This pre-trial review was fixed some time ago and it was specifically timed to take place before the summer vacation so that final preparations for trial could be made. It was listed for an hour and there has never been any suggestion it should have been for more. However, at the 11^th hour the defendants decided to issue an application which sought two things: the first is specific disclosure in respect of a variety of further documents which are said not to have been disclosed or about which there is no adequate explanation and the second seeking to strike out the best part of 50 paragraphs in five witness statements which have already been served by the claimant. The application stated that it would only require a one-hour hearing. It was clearly intended it should be listed at the same time as the pre-trial review.
7. I cannot emphasise enough to practitioners that it is wholly inappropriate to seek to use the pre-trial review, unless there is more than adequate time, to tack on important applications which one or other party wishes to make. Of course, it must be for either party to make any application which it believes it is entitled to, but it is quite wrong, generally, to seek to use the pre-trial review as a vehicle to do that. I have to say that, although we have been able to deal in the extended time available with one of the applications put forward by the defendants, we have not had time to deal with the other application, I wish very much to encourage practitioners and parties who use this Court to take out specific applications with specific application times for their applications to be heard and not try to tack them onto the pre-trial review. There may always be exceptional grounds for seeking to do so, but I have to say in this case no such exceptional grounds exist.
8. The Court and the parties were able to deal with the pre-trial review matters reasonably competently and in a way which I would expect with co-operation between solicitors and counsel to achieve that and we dealt with that in about twenty minutes. I have extended the time so far as I can to an hour and a half and with this ruling it is going to overrun somewhat.
9. So far as the application which we have not had time to deal with, that relates to seeking to strike out parts of the claimant's witness statements. This is a practice, again, which is broadly discouraged by the notes in the CPR although, of course, there are always occasions when it is appropriate to seek to make such an application.
10. It has been agreed, because the Court does not have time, that that part of the application is adjourned to the first day of the trial. I would very much hope that very serious consideration would be given by the defendant and the defendant's legal advisers to not pursuing that application because it is almost invariable in this Court that, if there are immaterial matters, technically inadmissible, in the witness statements, time can best be used simply getting on with the case and if a particular point arises on some aspect of that written evidence, then a point can be made at the beginning of the trial or, more commonly indeed, at the end of the trial. It is a practice which I would like to discourage but of course I will keep an open mind if the application is pursued on day one of the trial, assuming I am the trial judge.
11. The application we have had time to deal with relates to disclosure and an application bundle which runs to some 380 pages has been prepared. It comprises, apart from the application, the draft order and a witness statement of Mr Flook which runs to 51 paragraphs and the remainder of the bundle, hundreds of pages relating to documentation which is relied upon in support of the application, much of it extensive and detailed correspondence between the solicitors, three-quarters of which has not been referred to in argument.
12. Now, I will deal with the specific heads of documentation which the application pursues and I deal first of all with the Order which is sought in relation to a search for documents which contain the word 'permeability'. What the defendant seeks is that the claimant shall undertake a further search, that is further to the searches which have already been done:

"(refined by reference to custodians and dates on terms to be agreed with the defendant) and review of the documents produced from the original standalone search for 'permeability' undertaken by the claimant."

13. It is clear on the evidence and indeed on the correspondence that the claimant initially did undertake a search of the word 'permeability' on a stand-alone basis, i.e. on an electronic basis one fed in the word electronically and a number of documents come up. In this case it appears that almost 40,000 documents containing the word 'permeability' were initially identified and, as the claimant has explained, much of its business is in permeability testing so it is highly likely that the vast majority of those documents are irrelevant to this dispute and in all probability relate to other projects and the like.
14. These 38,000 documents were then refined down to about 20,000 primarily by a de-duplication exercise carried out by independent electronic disclosure experts and the argument between the parties relates to whether or not the claimant should do a manual review of those 20,000 documents. Those 20,000 documents in human terms would translate on a best estimate of somewhere between 70 and 100 Lever Arch files of documents.
15. What the claimant has done and the evidence and the correspondence indeed reveal is to do a search in relation to those documents as against other key words or custodians on the basis that it is pointless looking at documents which simply contain the word 'permeability' because as I said, a large number will simply be wholly irrelevant. So, it has have done a refined search in relation to custodians and other key words and they have disclosed all those documents.
16. I am satisfied that that is a proportionate amount of work to have done and it would be wholly disproportionate to require a manual review on documents which in all probability will be irrelevant. That is not to say that one might find one or two documents which have not been disclosed in going through the 20,000 documents, but in all probability it is highly unlikely and, therefore, that part of the application fails.
17. The second application on disclosure which is made is that the claimant should carry out a search of Matthew Mavor's hard drive and disclose relevant documents. There is a long and complicated story about this. Mr Mavor is not employed as an employee by the claimant but he is going to be a witness, I am told; indeed a witness statement has been provided. He is based, I am told, in the United States. He was prepared to let the claimant and its advisers have his hard drive and that was examined not only by the claimant's solicitors but also by electronic disclosure experts and they have disclosed everything that can be found on that hard drive.
18. There are some attachments which have proved impossible to retrieve. A number of them from the titles are obviously completely irrelevant and one clearly is a recording of a well-known song: "I put a spell on you" - and one imagines that much of this would be irrelevant anyway. Mr Mavor's hard drive has gone back to Mr Mavor and is no longer in the possession of the claimant. The Claimant has disclosed what it has; it has said unequivocally that it cannot access the unreadable parts of the hard drive and it seems to me it is not proportionate to require anything more to happen. Otherwise it simply becomes a fishing expedition.
19. There are two parts of the application which are no longer pursued. It relates to field notes and emails. In the light of what has been said I think both in correspondence and indeed in the third witness statement of Mr Leckie for the claimant, no further such documents exist or can be found. So, that is not pursued.
20. There is a request for all individual packer specifications for each packer system to be provided. Packers are physically part of the process involved in the testing work done by the claimant and there is a complicated story which I do not need to go into as to how the packers came to be provided. The claimant has provided a document from the American supplier called Baski Incorporated of Denver, Colorado which is a standard packer selection table and it has provided the invoices which were submitted in respect of the packers provided for this particular job. So, it is clear what the type of packer provided apparently was. But, on the packer selection table sheet which has been disclosed and it looks very much like a standard sheet, it says this, very much in pro forma form: "Please contact us for detailed individual packer specifications."
21. The assumption is then made by the defendants that the claimant must have secured those individual packer specifications which apparently are available on demand from Baski or were available on demand from Baski at the time. It has been made clear that those documents, everything that they have, have been provided and, therefore, I rule that that application cannot really be taken any further.
22. Notes have been provided from a Mr Wood who is to give evidence and it is said by Mr Fraser that he may have been considered to be something of an obsessive notetaker. Whether that is true or not I do not know but the notes have been provided, handwritten notes provided with elements which have been redacted and Mr Leckie deals with this at paragraph 29 - 31 of his witness statement and he says this:

"Mark Wood worked on many different projects simultaneously and his detailed notes, which consist of a daily diary of his word, reflect this. The Contract with the Defendant was just one of the many ongoing projects and therefore a great deal of information to Mr Wood's notes do not relate to this case. Furthermore, some of it is commercially sensitive, given the nature and relatively small size of the CBM industry. Other projects are not only not relevant, they are commercially sensitive as the Defendant will know, for example, that Company X is using the Claimant to perform testing at Site Y. There is no reason why such information should be provided to the Defendant.

We instructed Mark Wood to dictate his handwritten notes into a dictaphone in Denver, Colorado and send us the tape. This is because his handwriting is difficult to decipher and a great amount of the notes use abbreviations and initials. We also instructed Mark Wood not to include any information which does not relate to this claim and/or which is commercially sensitive. We transcribed the tape into a word document (provided to the Defendant on 27 January 2011 at PAF1 page 67) and then performed the task of redacting Mr Wood's handwritten notes to correspond with the typed up word document and to check that any information which does not relate to this claim and/or which is commercially sensitive was redacted from the handwritten notes."

23. So, the redaction has been carried out by qualified and professional solicitors who have satisfied themselves that the information redacted was either irrelevant and/or was commercially sensitive and it seems to me that solicitors on both sides are sufficiently experienced in this sort of litigation to know that simply because something is commercially sensitive does not mean to say it is not disclosable. It must be both irrelevant and commercially sensitive to justify redaction. I, for one, at least, am prepared to accept Mr Leckie's word for this, that those parts of the handwritten notes which have been redacted fall into that category. It seems to me that I cannot and should not really go behind that.
24. Finally, permeability also raises its head again on this disclosure application. It relates to flow data. Now, flow data broadly means what it says: information usually recorded which relates to the flow of gas, sometimes liquid, in and through a gauge or measuring device of some sort. There has been some disclosure of flow data but there is also witness evidence - and that is witness evidence to be adduced at trial - which suggests that in a number of instances there was no measurable flow. There may well have been instances where there was measurable flow and I cannot make a decision about that but it is clear on the documents and correspondence and, indeed, in Mr Leckie's written statement, that the claimant's belief is that it has disclosed all the documents that it has.
25. Generally, with regard to all these documents, disclosure of which is sought, it may well be a matter of comment at the trial and the defendants may wish legitimately to make some capital out of the fact that a number of documents, which it would expect to exist, do not exist and apparently have never existed. That may be material which may assist it or not in their case that there has been a breach of contract on the part of the claimant. Obviously, I cannot decide that.
26. I formed the view that none of this application is justified and that the application for further disclosure should be dismissed.
27. I should add one final thing; the defendant's application is supported by a statement of costs which runs to £47,000 and is exclusive of VAT. This was for what was supposed to be for a one hour application and, of course, I do appreciate that a lot of work may well have had to go into the preparation of the applications that have been made. Again, I would like to encourage practitioners to seek to keep costs at a proportionate level, not only just for a pre-trial review where the costs usually are proportionate, but also for this sort of application. At least on its face, £47,000 for a disclosure application and the redaction or striking out of some parts of witness statements seems to be a very large sum of money for a one hour application.