[2025] EWHC 2972 (Comm)

There are three issues before the court regarding the list of issues for disclosure as set out in the disclosure review document.

I start by identifying issue 1, which is agreed:

“From what date did the Claimants ... discover, or could with reasonable diligence have discovered:

1.1.

Enough to plead their case, or

1.2.

Sufficient information to realise that they had a worthwhile claim, so as to give them sufficient confidence to justify embarking on the preliminaries to issuing the claim, such as taking legal advice, collecting evidence, or submitting a claim to the Defendants?”

Against that background, there are three issues in dispute regarding sub-issues 1.1, 1.2 and 1.3.

The issue that arises on 1.1 is whether an issue for disclosure should be: “When did the claimants instruct solicitors and/or barristers on any or all of the issues set out in the list of common ground and issues?”

The defendants’ position is that the date on which solicitors and/or barristers were instructed by any claimant goes potentially directly to the preliminary issue and to the date on which there was actual or constructive knowledge for the purposes of making the claim. The claimants’ position is that any such information would be of no evidential value without disclosure of the content of those instructions and those would be privileged.

I consider that this is an appropriate issue for disclosure in the circumstances of this case. The date on which lawyers in general were instructed by any of the claimants may, I emphasise “may”, be relevant in terms of establishing the date by which that claimant had or is deemed to have sufficient knowledge for the purposes of section 32 of the Limitation Act. It may support the claimants’ case. It may show that a claimant did not have sufficient information until a relatively late date, thereby establishing or supporting its case that it did not have sufficient information until after June 2018. It may support the defendants’ case, in that it may show that the claimant had sufficient information to go to a solicitor or barrister at a much earlier date than June 2018. It may be that it proves to be of little evidential value, but one cannot determine that until the relevant documentation has at least been listed.

There may well be issues as to privilege; it may be that the claimants will have to consider whether or not they wish to stand by any such privilege or waive it. But all of those matters are further down the line. I think at this stage it is a relevant question for the defendants to ask. It arises directly as a result of the preliminary issue that is to be tried.

Therefore, I will order that issue 1.1 should be included as a disclosure list, but subject to the point I make in relation to the third issue.

Turning to the issue that arises on issue 1.3, that relates to a specific request for the relevant sample claimants to make searches in relation to information on social media, WhatsApp, text messages and so forth regarding the issues set out in the list of common ground and other issues.

As I have already indicated, the court considers that this is, as drafted, too vague and speculative, which is the position taken by the claimants. A wide-ranging trawl would be expensive and time-consuming and probably would not be very productive. However, the defendants have helpfully taken instructions and agreed that they could draft a model C request, which would be much more precise and targeted.

On that basis, I will not order the inclusion of issue 1.3, but I will direct that the defendants draft their model C request. Hopefully it can be agreed by the claimants and, if not, the parties could simply refer it to the court and the court will decide it on the papers.

Turning then to the third issue, this applies to issues 1.1, 1.2 and 1.3 as currently drafted, which is whether there should be an inclusion of the words, after reference to the Claimants: “... whether in their individual capacity or as a member of an association, society or otherwise ...”

The defendants have explained that this is essentially for clarification only, so that if documents or information has come into the possession of the claimants through their membership of an association or other society, those documents would still be caught by their disclosure obligations.

The claimants submit that that is already covered by issue 1; if they have the documents, then they are disclosable, and if they do not, there should not be any attribution on the part of the claimants by reference to information and/or documents held by an association or society.

I decline to include this as a separate issue because it is already included in issue 1. I appreciate that the intention was simply to include it for clarification but, in my view, that is only likely to arise if documents are not included in the disclosure identified by the claimants under issue 1 and it is clear that there are gaps. The reason that any gaps in disclosure might become apparent is because the LTDA has helpfully agreed to cooperate and give its own disclosure. Therefore, it would not be too difficult to work out that there might be a failure on the part of an individual claimant to give disclosure based on documents disclosed by the LTDA showing that they were circulated to that claimant.

In those circumstances, I do not consider that the additional clarification is necessary for inclusion in the list of issues. It may well form the basis of communications between the solicitors during the disclosure exercise, but it is unnecessary at this stage.