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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/12/2015

1. This is an application by the Defendant for specific disclosure. It was made on Friday, 13 November 2015, and the order sought is as follows:

"The Claimants shall undertake a search for the specific documents and/or classes of documents (both in electronic and non-electronic format) as set out in the Schedule to the draft order attached hereto…".

2. The schedule attached to the draft order ran to 7 pages. A witness statement made by the Defendant's solicitor, Ms Jillian Raw, a partner in Kennedys, supported the application. The statement was 14 pages long, and exhibited 160 pages of correspondence and other documents.
3. Unsurprisingly, the Claimant took just over one week in which to reply. That response took the form of one witness statement by the Claimant's solicitor, Natalie Cooksammy, a partner in Cozen O'Connor, and one witness statement by an office manager employed by the First Claimants' company. Ms Cooksammy's witness statement ran to nearly 20 pages and attached to it was a copy of the schedule to the draft order with an additional column setting out the Claimants' response. The exhibit to the witness statement ran to about 100 pages (the page numbering is a little awry). Ms Cooksammy said that the original request made by a letter dated 16 September 2015 involved "many hundreds of individual requests for further disclosure".
4. This was, therefore, a substantial application. The time estimate given by the Defendant's solicitors, namely two hours, proved to be seriously inadequate. The hearing in fact took 4½ hours, excluding judgment.
5. The Claimants were represented by Mr Edward Bartley Jones QC and Mr Adam Chichester-Clark, instructed by Cozen O'Connor, and the Defendant was represented by Mr Andrew Miller QC, instructed by Kennedys.

The background to the dispute

6. The Claimants bought a very large and prestigious house in Reddington Road, Hampstead. It was lavishly refurbished between about 2005 and 2009 but, unfortunately, on 18 November 2010, there was a very substantial flood when a Polyplumb connector in bathroom 6 burst, with result that water was discharged through the house for a period of about an hour or so before the water was turned off.
7. The Defendant was the main contractor who carried out much of the initial refurbishment work. The Claimants allege that the Defendant's plumbing subcontractor negligently installed the connector which failed. The Defence has gone through several changes, the last variant of it being served about two weeks ago. Initially, the Defendant appeared to accept that its subcontractor had installed the connector in question. Subsequently its position changed and it now alleges that the connector was installed at some stage after July 2007 by different contractors who were carrying out modifications to the plumbing in bathroom 6 and elsewhere. Further details of the Defendant's technical case can be found in the short judgment that I gave on 6 March 2015 when directing that there should be a split trial of liability and quantum.
8. When giving directions for a separate trial of the issues relating to quantum I ordered that disclosure in relation to both liability and quantum should take place prior to the trial on liability and that witness statements in relation to quantum should also be served prior to the liability trial. This was to enable the Defendant to make an informed assessment of the true value of the Claimants' claim so that it would not be prevented from making a Part 36 offer if it wished to do so at an early stage in the litigation. I made it clear that disclosure was to be on the standard basis.
9. The Defendant's application focused mainly on documents in relation to quantum: by the time of the hearing any remaining issues about the liability documents had effectively been resolved. In fact, I concluded (and stated at the conclusion of the hearing) that the disclosure that was sought in relation to liability was adequately covered by an order made by Fraser J on 5 November 2015 (on an application by the Defendant to serve a Rejoinder). By that order Fraser J directed that disclosure arising out of matters pleaded in the Re-Amended Defence and the Re-Amended Reply was to be given by 11 December 2015. I take the view that the documents sought in relation to liability on the present application fall within the scope of that order. Accordingly, I indicated that the application in so far as it related to documents on liability would be dismissed and so I need say no more about it in this judgment.

The background to the quantum of the claim in more detail

10. Within two weeks of the escape of water on 18 November 2010 the Claimants' buildings and contents insurers, Chubb Insurance Company of Europe ("Chubb"), had instructed Cozen O'Connor to pursue a subrogated claim against the relevant contractor for its potential outlay in respect of the costs of repair and reinstatement. It seems that at about the same time it instructed RPC to protect its interests in relation to policy coverage issues. I was not told the precise date on which either firm was instructed. The Claimants were, and still are, represented by Mishcon de Reya. The claim in this action is confined to the losses sustained by Chubb, and so the action is brought in the name of the Claimants by way of subrogation: they themselves have no interest in the outcome.
11. The Claimants made a claim on their policy with Chubb for a sum in excess of £10 million. Loss adjusters and assessors were instructed and protracted negotiations followed.
12. In a letter dated 26 August 2015 Cozen O'Connor said that the quantum of the claim had been the subject of a detailed loss-adjusting process and a highly contentious dispute between the insured and insurer which involved valuation experts on both sides. Eventually, the Claimants' claim against Chubb was settled for about £6.5 million. The Defendant contends that in the circumstances the final settlement was not in truth the result of a straightforward loss adjusting exercise, but was in effect a negotiated settlement - the suggestion being that Chubb was prevailed upon by those acting for the Claimants, who are clearly not short of resources, to pay more than the true value of the claim. The Defendant's approach to this claim suggests that it is driven in part by a firm belief that the claim is inflated.
13. In the same letter Cozen O'Connor said that they were "content to arrange for a further search to be made for documentation created between 2004 and 2008" as the Defendant's solicitors had requested. The Defendant contends that disclosure in relation to quantum should cover the years 2004 to 2010, during which the property was redeveloped. This may seem a little curious at first sight because the claim is for the cost of repairing the damage caused by the escape of water at the end of 2010. However, the explanation is that the Defendant or, in reality its insurer, is interested to compare the cost of the repairs with the costs of the original installation, no doubt suspecting that the Claimants may have carried out the restoration to a significantly higher standard.
14. Whilst this is an understandable line of inquiry, I can see no basis whatever for going back to 2004. This claim is likely to be concerned with the cost of the finishes, fixtures and fittings, rather than with the underlying fabric of the building. Indeed, during the hearing I think that Mr Miller was constrained to accept that the date range should probably be limited to documents coming into existence after 1 January 2006. In my view this was a realistic and proper position to take.
15. The foundation for the Defendant's application was a letter from Kennedys dated 16 September 2015. Attached to the letter were two appendices setting out the documents for which disclosure was sought. The documents requested in Appendix 1 were described by Kennedys as follows:

a. "Missing documents - the absence of which is clear from the pagination of the files.

b. Documents that have had their text obscured (not redacted) with no explanation been provided the text having been obscured.

c. Documents that are relevant to other documents and/or referred to in original documents which have been disclosed. For example, Cadogan Tate - check in sheets refer to packing inventories which have not been disclosed.

d. Photographs and videos referred to in documents.

e. Documents and/or schedules and/or attachments referred to in emails.

f. Email exchanges where the chain of emails is incomplete.

g. Reports referred to in invoices and/or other documents including e-mails.

h. Documents that require a legible copy to be disclosed.

i. Original invoices and valuations.

j. Identification of certain documentation that may already be within the disclosed documents but which we have not been able to identify."

16. The letter also relied on references to "historic lever arch property files" and to "12 boxes of papers relating to the original project to refurbish the property" and requested disclosure of those documents. In addition, there was a general request for disclosure of all documents passing between the Claimants and their agents and three sub-contractors who carried out work to bathroom 6.
17. Appendix 1 ran to 26 paragraphs. It requested better or unobscured/unredacted versions of several hundred individual documents, copies of a very significant number of documents to which reference had been made in other documents (such as attachments to e-mails), in addition to the 12 boxes of papers to which I have already referred.
18. On any view this was a very wide ranging request. It was not confined to documents falling within the ambit of standard disclosure: indeed, it would be almost impossible for such a wide ranging request to do so.
19. Cozen O'Connor's response to this request, including the demand that it be met within 7 days, was to describe it as "neither fair, reasonable nor proportionate". This was in a letter dated 24 September 2015. In that letter they made it clear that they would not disclose documents relating to quantum created between 2004 and 2008 in the absence of an order from the court. At this point in time the trial of liability was fixed for January 2016, so compliance with such a wide ranging request for quantum documents would clearly be a substantial burden during the run-up to trial.
20. In spite of this unequivocal refusal to provide further quantum documents created during the period 2004 to 2008, Kennedys did not issue its application for specific disclosure until 13 November 2015, and then, seemingly, only in the light of comments made by Fraser J at the hearing on 5 November. As I have mentioned, the time estimate was 2 hours and so it was listed for 25 November 2015. It would not have been listed at such an early date if the court had appreciated that the application was likely to take the best part of one day.
21. Cozen O'Connor made a full response to the application on Monday, 23 November 2015, when they served the second witness statement of Ms Cooksammy. As I have already mentioned, there was attached to that witness statement a copy of the schedule attached to the application with an additional column in which Ms Cooksammy set out the Claimants' response.
22. Page 18 of the schedule contained the Claimants' response to the request for documents listed under the heading "Missing/Undisclosed Documents". This contained two classes of documents: first, documents created during the period 1 January 2006 and 31 December 2007 and, second, documents passing between the Claimants and various sub-contractors who had been involved in carrying out work to bathroom 6.
23. The Claimants assumed, quite understandably, that this first class of documents related to liability because they concerned the period 1 January 2006 to 31 December 2007, which was the date range for which the Defendant had been seeking disclosure of documents relating to liability (see, for example, paragraph 20 of Ms Raw's fourth witness statement). Indeed, when Mr Miller produced a version of Ms Cooksammy's schedule with the Defendant's responses inserted in an additional column, this item was marked "LIABILITY". Mr Miller then added a further category in relation to the quantum documents, with a date range from 1 January 2004 to 31 December 2007. This class was marked "QUANTUM".
24. When pressed as to where there was a request for quantum documents created between 1 January 2004 and 31 December 2007 in the original application, Mr Miller initially felt bound to concede that there was no such request. He then backtracked from this by saying that the first class of documents on page 18 of the schedule, which requested documents created between 1 January 2006 and 31 December 2007, was not stated as being limited to documents relating to liability. As a matter of a strict reading of the schedule, that is correct, but it is quite clear that both parties understood that it was intended to refer to documents relating to liability only. This is clear not only from Ms Raw's witness statement, as I have already mentioned, but also it is what both Ms Cooksammy and Mr Bartley Jones understood: see paragraph 40 of Ms Cooksammy's second witness statement and paragraph 15 of the skeleton argument of Mr Bartley Jones and Mr Chichester-Clark.
25. Against this, it is a forlorn submission to say that in prior correspondence Kennedys had been seeking quantum documents from 2004 onwards and so the Claimants should have realised that this was what was being sought in the application. In my judgment it is quite plain that the application as served and understood by the parties did not extend to a general request for undisclosed quantum documents created during the period 1 January 2004 to 31 December 2007. Further, as I have already explained, both parties understood the request for documents created during the period 1 January 2006 to 31 December 2007 to be a request for documents concerning liability, not quantum.
26. However, as I indicated to Mr Bartley Jones during the hearing, since the issue of the pre-2006 documents relating to quantum had been extensively canvassed in both correspondence and during the hearing, my inclination was that it would be sensible to deal with it on this occasion rather than to adjourn it, whilst preserving any consideration of questions of costs.

The appropriate date range

27. I have already indicated that I can see no justification for extending the date range relating to the creation of quantum documents as far back as 1 January 2004. I did not get the impression that Mr Miller was prepared to press very strongly for the range to start earlier than 1 January 2006. But whether or not that is the case, that in my judgment is the appropriate starting date.
28. So far as liability documents are concerned, I have already indicated that the disclosure sought falls within the scope of the order made by Fraser J on 5 November 2015. However, for the avoidance of any doubt, I should make it clear that on the material before the court on this application I can see no basis for the Claimants being required to search for documents relating to liability that came into existence prior to 1 January 2007.

The disclosure of quantum documents prior to 1 January 2008

29. It seems to me that there are very likely to be documents created prior to 1 January 2008 that will throw light on the reasonableness of the sums spent on remedial work after the flood. To this end, Mr Miller hastily drafted a proposed order during the lunchtime adjournment. In my opinion the categories of documents sought in that draft order are too wide. Further, the suggestion that the disclosure exercise should be done within 7 days is in my view ludicrous. It reflects an element of unreality and lack of proportionality that, I regret to have to say, underlies many of the Defendant's submissions on this application.
30. Mr Bartley Jones says that there should be no order on this part of the request because it is wholly disproportionate. His primary position is that this part of the application should be adjourned so that the Defendant can reconsider its scope and formulate a more realistic request identifying the relevant keywords.
31. His alternative position was that if there is to be an order it should be carefully confined. For example, he submits that it should not extend to documents relating to the building works carried out prior to 1 January 2008. He accepts that the request in relation to fixtures, fittings and furniture is more understandable. I agree.
32. I consider that, in spite of the absence of any appropriately framed application and the submissions of Mr Bartley Jones, the court in its discretion and the exercise of its case management powers should make an order in relation to the disclosure of quantum documents since the issues have been fully argued. However, I agree with Mr Bartley Jones that it should not extend to building works, even finishes (that is paragraph 1(2)(a) of Mr Miller's draft order). I would expect the standard of finishes prior to the flood to be reasonably apparent from photographs taken after the event (and, of course, if they exist, photographs that predate the flood). There should, of course, be a search for and disclosure of any such photographs.
33. As to the furniture, fixtures and fittings, I consider that there should be an order in the following terms:

(1) The Claimants are to search for the following classes of documents in their possession and control (in both hard copy and electronic format) relating to furniture, fixture and fittings that were in the property on 18 November 2010, but limited to documents coming into existence between 1 January 2006 and 31 December 2007: invoices or, in the absence of those, other documents, such as valuations or estimates, showing the cost of any item with a value in excess of £1,000 in respect of which a claim is being made against the Defendant. This search should extend to computer hard drives, servers, external drives and USB sticks.

(2) The parties are, by 4 pm on 4 December 2015, to discuss and, if possible, agree suitable keywords for the electronic search. Failing such agreement any dispute relating to the choice of keywords is to be resolved by the court on paper.

(3) The list of documents and disclosure statement following such search is to be served by 4 pm on 24 December 2015 or, if later, three working weeks after any agreement or decision of the court in relation to the choice of keywords.

The outstanding requests in relation to specific documents

34. In relation to the requests in respect of File Nos 26 and 42, and Nos 41, 66, 68 and 69, but only in so far as they concern electronic links or electronic copies of e-mails, the Claimants are to provide the requested link and/or documents in electronic form by 4 pm on 4 December 2015.
35. In relation to Files Nos 5, 9, 27, 29, 55, 62,65 and 67, there is to be no order.
36. In relation to the historic files or 12 boxes, Mr Cooper is to include in any disclosure statement a summary of his knowledge or belief as to the likely whereabouts of any copies that may exist in electronic form of the original documents in those files.
37. In relation to the claims for legal professional privilege, the Defendant is to identify 10 documents of which the contents have been obscured and/or redacted and the information that it requires in order to assess the validity of the claim for privilege. Such information may include the date; the identity of sender; the principal recipients (ie. not those to whom the document was sent by cc); and whether or not a copy of the document was sent to either Cozen O'Connor, or RPC; the subject heading, and a brief outline of the contents of the document (to the extent that this can be given without waving privilege or disclosing the substance and/or purpose of the privileged material).
38. Such requests are to be made by 4 December 2015 and answered by 4 pm on 18 December 2015. In the event that the Claimants decline to give the information requested or the Defendant is dissatisfied with the information given, the documents are to be submitted to independent counsel for review. In the absence of agreement by the parties as to the identity of such counsel, he or she is to be one of the following: Anneliese Day QC, of 4 New Square, Lynne McCafferty, of 4 Pump Court, Crispin Winser and Elizabeth Boon, both of Crown Office Chambers.
39. The chosen counsel is to be provided with:

(1) A copy of this judgment and bundle A1 (the Permanent Case Management Bundle).

(2) Unobstructed and/or unredacted copies of the relevant documents (and, if an e-mail, all messages in the relevant e-mail thread).

(3) The parties' responses in relation to the selected documents.

40. Within 14 days of receipt of this information, the chosen counsel is to report to the court on the results of his or her analysis of the documents. Such report is, if possible, to be in a form that can be disclosed to the Defendant's solicitors and counsel on a confidential basis.
41. If either party is not content with this part of the order (ie. in respect of the procedure for review by independent counsel), it is to make submissions within three working days, to which there is to be a response by the other party within two working days thereafter.
42. All time limits referred to in this judgment are to run from the date when this judgment is circulated to the parties in draft, namely 26 November 2015.

Costs

43. I will deal with any questions of costs by way of written submissions following the handing down of this judgment (which are not to exceed three pages). However, the Defendant must understand that I regard the application for disclosure, in so far as it concerned documents relating to liability, to have been unnecessary in the light of the order made by Fraser J on 5 November 2015. In so far as the application purported to concern quantum documents created between 1 January 2004 and 31 December 2007, in my view it was not properly made by the application dated 13 November 2015. The fact that the court has dealt with the request for quantum documents coming into existence prior to 1 January 2008 has been an indulgence and so that fact, together with the fact that the application has succeeded only in part and to an extent much more limited than requested, will have to be reflected in any order for costs.