Claim No: IL-2025-000064 - [2025] EWHC 2545 (Ch)

In light of the order for an expedited trial, the parties no longer invite the court to order costs budgeting. That left only two areas to be addressed at the case management hearing on 18 September. The first was the resolution of outstanding issues in relation to disclosure. These had been considerably narrowed as a result of a constructive dialogue between the parties’ legal representatives shortly before the hearing. This meant that only three issues for disclosure remained outstanding at the start of the hearing. One of these (issue 6) was resolved following oral submissions, and after some suggestions from the court, during a short, further adjournment early after the court resumed following the luncheon adjournment. On this aspect of the case, it was Mr Ciumei KC who addressed the court for the claimants (although Mr Craig KC’s later submissions have some relevance to the first of these outstanding disclosure issues).

The second outstanding issue was the defendant’s application, dated the previous Friday, 12 September, seeking permission to adduce expert evidence on quantitative investment and trading strategy development from Mr Colin Knight, and any consequential directions. This application is supported by the witness statement of the defendant’s solicitor, Mr Nabeel Sheikh, also dated 12 September. It was Mr Craig KC who addressed me for the claimants in opposition to this application.

Since starting to prepare this written judgment, there have been several further developments. On Monday 22 September, the claimants filed an updated composite draft of the parties’ Disclosure Review Document, reflecting positions agreed between the parties at the hearing. I had indicated that I would set aside the whole of Wednesday 24 September to start work on this judgment. On Tuesday 23 September, however, I received a letter from the claimants’ solicitors, A & O Shearman, which had been written the previous evening and copied to the defendant’s legal team. This informed me that there remained a dispute between the parties with respect to: (i) the defendant’s proposed disclosure issue 4; (ii) the defendant’s proposed disclosure issue 8; and (iii) the data sources/locations to be searched in respect of the defendant’s disclosure, as set out in the answer to question 2 of the defendant’s section 2 questionnaire. This letter explained that the dispute in respect of issue 8 was different to that which had been set out in the parties’ respective written submissions (because its formulation had changed). The parties had not addressed the court orally on that, or on the defendant’s disclosure sources, at the hearing. Although the parties would continue to discuss matters in the hope that these could be resolved, or at least narrowed, I was invited to direct that, in the absence of agreement, the parties should have until 4pm on Friday 26 Septemberto make any further written submissions that they might wish to make on Issue 8 and the defendant’s disclosure sources.

As regards expert evidence, the claimants anticipated that the court would give its judgment on whether expert evidence was necessary, in principle, at the same time as its determination on disclosure. If the defendant’s application for expert evidence were to be dismissed, then clearly no further steps would be necessary. If, however, the application were to be allowed in respect of any of the five matters advanced in the defendant’s application, the claimants proposed that the parties should be given an opportunity to discuss the implications between themselves, and, if necessary, for the court to list a short further hearing.

In response, I directed that, in the absence of agreement, the parties should have until 3pm on Friday 26 September to make and file any further written submissions they might wish to make on issue 8 and the defendant’s disclosure sources. That was so that, hopefully, those submissions would reach me before the weekend. I indicated, however, that the parties must appreciate that this would, inevitably, delay the production of my judgment.

Shortly before lunch on Friday 26 September, I received a forwarded email from the claimants’ solicitors (copied to the defendant’s legal team). This acknowledged that the current deadline for written submissions to address outstanding issues relating to the disclosure review document following the hearing held on 18 September 2025 was 3pm that afternoon. The email informed the court that the parties were continuing to discuss the disclosure issues, as previously directed, to see if the parties could reach agreement. By agreement between the parties, I was asked to extend the deadline for written submissions “briefly” until 3pm on Monday 29 September 2025, as those discussions were continuing. In the meantime, I was invited not to make any judgment until receipt of those written submissions. I directed Chancery Judges Listing to respond to this letter, pointing out that I had set aside Monday 29 September for further work on my judgment. If the parties were to delay until 3.00 pm on that day, I could not predict when any judgment might be forthcoming. At about the same time as they acknowledged my directions, Chancery Judges’ Listing relayed to me a request from the clerk to the claimants’ leading counsel inquiring after my availability over the next couple of weeks for a half day’s hearing, either remotely or in person. I was told that the parties had not dealt with all the issues at the previous week's hearing, and that a further hearing might be required if they were not able to resolve the outstanding matters. I did not respond to this inquiry since I considered it to be premature pending the handing down of this judgment, not least because of the impossibility, until then, of identifying the extent of any matters remaining in dispute between the parties, and thus estimating the length of any hearing.

On Friday 26 September, both parties filed and served further written submissions, although the claimants’ submissions were not filed until shortly after 9.00 pm and they did not reach me until (unprompted) I accessed the unprocessed filings section of the CE-File on the morning of Monday 29 September. For the defendant, Ms Goodman’s submissions extend to ten pages. They cover the existing disclosure issue 4 (on which I had already received written and oral submissions) and the newly further re-formulated issue 8, together with ancillary disclosure issues (notably custodians and date ranges, and the manner and intensity of the review of document repositories/management systems, communication channels, devices and digital accounts). More than half of Ms Goodman’s written submissions are directed to her application to adduce expert evidence, including submissions on the propriety and proportionality of the instruction of a single joint expert, and the five issues on which any expert should be asked to opine.

Ms Goodman’s written submissions are the subject of extended criticism from the claimants’ solicitors in an email to the court timed at 20.41 on 26 September. This reads as follows:

The claimants’ further written submissions extend to six pages in total. They address the matters relating to the draft disclosure review document that were not dealt with in oral submissions at the hearing on 18 September 2025 “as directed”. They also explain why the claimants do not consider it to be appropriate to address issues relating to expert evidence by way of written submissions. That is because the court’s direction plainly did not permit the parties to file written submissions in relation to expert evidence. Further, as explained in the letter to the court from the claimants’ solicitors on 22 September 2025, the claimants anticipate that the court will give its judgment on whether expert evidence is reasonably required in principle, in light of the submissions made at the hearing on 18 September 2025. If (contrary to the claimants’ position) the court were to determine that expert evidence is reasonably required, a number of consequential matters would arise, including (among other things): (i) the relevant field(s) of expertise; (ii) the precise formulation of the issue(s) for expert evidence; (iii) whether there should be a single joint expert or separate experts for each side; (iv) the timetable for expert evidence; and (v) any potential reservation of the parties’ positions as to the admissibility, relevance and appropriateness of such expert evidence. These are significant matters that were not addressed at the hearing on 18 September 2025. Accordingly, and as set out in the claimants’ 22 September 2025 letter to the court, the claimants submit that those matters cannot properly be resolved at this stage. Instead, the claimants suggest that, if the court were to make an order that expert evidence is reasonably required in principle, the should parties be given the opportunity to discuss the implications between themselves, and, if necessary, to apply to the court to list a further short hearing to resolve any matters that cannot be agreed.

At the risk of being thought facetious, the notion that any ‘short hearing’ might be capable of resolving any matters remaining in dispute in this fiercely contested litigation seems to me to be overly optimistic. In this connection, I note the early observation of Mr Ciumei KC at the recent hearing (recorded at pages 5-6 of the transcript) in which he endorsed my comment at the earlier hearing that nothing in this case has been easy to resolve thus far.