BL-2023-000620 - [2025] EWHC 2465 (Ch)

Fecha: 10-Oct-2025

Disclosure

Disclosure

16.

That the approach to disclosure should be reasonable and proportionate is a recurring theme through the various provisions of PD57AD.

17.

Paragraph 6.4 of the PD57AD provides as follows:

“In all cases an order for Extended Disclosure must be reasonable and proportionate having regard to the overriding objective including the following factors –
(1)
the nature and complexity of the issues in the proceedings;
(2)
the importance of the case including any non monetary relief sought;
(3)
the likelihood of documents existing that will have probative value in supporting or undermining a party’s claim or defence;
(4)
the number of documents involved;
(5)
the ease and expense of searching for and retrieval of any particular document (taking into account any limitations on the information available and on the likely accuracy of any cost estimates).
(6)
the financial position of each party;
(7)
the need to ensure the case is dealt with expeditiously, fairly and at a proportionate cost.

18.

Paragraph 6.5 places the burden on the party requesting an extended disclosure order to show that what is sought is reasonable and proportionate. Paragraph 6.6 makes clear that the objective of the relation of disclosure models to issues for disclosure is to limit the searches to be made and the volume of documents and cautions against using disclosure models that will increase costs or complexity.

19.

The disclosure regime – whether under CPR31.6 or PD57AD - is premised on each party conducting a reasonable search to identify relevant documents. Paragraph 16 of PD57AD envisages redaction of irrelevant and confidential information. If a party is concerned that the other side has failed to make proper disclosure, an application for specific disclosure may be made.

20.

In determining what orders to make about disclosure I must weigh the various considerations to reach reasonable and proportionate results. I have taken account of all the submissions made in the parties’ skeleton arguments, their submissions at the hearing and in the correspondence that passed between the parties following the hearing.

21.

The particular considerations that I was referred to by Mr Spearman were these:

(i)

if similar fact disclosure is sought it must be confined to properly similar cases: Merchants’ and Manufacturers Insurance Company v Davies [1938] 1 KB 196;

(ii)

in considering the likely probative value of disclosure the court should be alert to fishing expeditions where the benefit of disclosure is speculative; a claimant is not entitled to have disclosure ordered on the basis that something may turn up;

(iii)

in Portman BC v Royal Insurance [1998] PNLR 672, which concerned a lender's decision to re-mortgage, Simon Brown LJ rejected an open-ended business wide request for disclosure relating to decision making and suggested it should properly be limited to a request that would cater to the “defendant’s proper concern to see anything which might sensibly have influenced [person who took] the lending decision” but not wider; and

(iv)

where wide and vague categories are sought the ease and expense of disclosure and whether it is necessary to fairly dispose of the action must be considered: Fox v Boulter [2013] EWHC 4012 (QB) at [54-55];

(v)

the MDU accepts that confidential, commercially sensitive and privileged documents are not immune from disclosure, but the fact that documents may be so categorised and the measures and the expense of the measures to preserve confidence or privilege (including of third parties) is relevant. It is not suggested that anyone in Mr Tolias’s team would breach the CPR 31.2 prohibition on use of documents for a collateral purpose deliberately, but in circumstances where the relevant commercial world is small enough that Mr Tolias’s current solicitors were previously involved as solicitors for his broker PMP, there is a real risk that commercially sensitive information might inadvertently come to the knowledge of a person who could not forget that information such that a confidentiality club would be the only means of preserving confidence and that would inevitably add expense.

22.

Mr Krsljanin submitted that there were three important points of principle which I should have in mind:

(i)

that issues for disclosure are not the same as issues for trial: McParland v Whitehead [2020] EWHC 298 (Ch);

(ii)

that in a case concerning an exercise of discretion where Mr Tolias says relevant factors were not taken into account, the court should be alert to a risk that the MDU’s disclosure should not exclude material because of an assessment of relevance determined by its own, possibly wrong, criteria for relevance; and

(iii)

proportionality is not solely to be determined by the monetary value of the claim but also by its importance to the parties.

23.

So far as disclosure by the MDU in this case is concerned Mr Krsljanin submitted that:

(i)

all documents bearing on the MDU’s actual reasoning for the Challenged Decisions and its policies and practices in relation to requests for discretionary assistance must be disclosed; and

(ii)

at the stage of determining what is to be disclosed, questions such as the need for redaction or the creation of a confidentiality club at the inspection stage should be put to one side.