CL-2023-000230 - [2025] EWHC 2608 (Comm)

As I have set out, the DRD—including Disclosure Issue [redacted]—was agreed between the parties and approved by the court at the first CMC. On the day disclosure was to be given, Rana issued this application, seeking pursuant to PD 57AD para 14.1 to “withhold disclosure of any document concerning [redacted]. For convenience, I shall call those documents “[disputed] documents”, though I recognise that they go rather wider than that. The application seeks to amend Disclosure Issue [redacted] to delete all reference to [redacted]. It asks, in the alternative, to limit inspection of [disputed] documents only by physical inspection, without copying.

PD 57AD para 14.1 provides as follows:

“A person who wishes to claim a right or duty (other than on the basis of public interest immunity) to withhold disclosure or production of a document, or part of a document, or a class of documents which would otherwise fall within its obligations of Initial Disclosure or Extended Disclosure may exercise that right or duty without making an application to the court subject to—(1) describing the document, part of a document or class of document; and (2) explaining, in the Disclosure Certificate, the grounds upon which the right or duty is being exercised.”

(That is not in fact what Rana has done. Rather than rely on para 14 in her Disclosure Statement and wait to be challenged, she has actively anticipated that challenge by issuing an application. That does not make any difference of substance.)

Part of Rana’s argument is that she should be entitled to withhold disclosure or inspection on grounds that the disclosing [disputed] documents would cause harm to her rights out of proportion to any relevance they might have to the proceedings. But her application also involves (and indeed puts front and centre) the submission that [disputed] documents are in truth of no or marginal relevance, and that the DRD should be amended. That submission brings into play PD 57AD para 18:

“18.1

The court may at any stage make an order that varies an order for Extended Disclosure. This includes making an additional order for disclosure of specific documents or narrow classes of documents relating to a particular Issue for Disclosure.

18.2

The party applying for an order under paragraph 18.1 must satisfy the court that varying the original order for Extended Disclosure is necessary for the just disposal of the proceedings and is reasonable and proportionate (as defined in paragraph 6.4).

18.3

An application for an order under paragraph 18.1 must be supported by a witness statement explaining the circumstances in which the original order for Extended Disclosure was made and why it is considered that order should be varied.

18.4

The court’s powers under this paragraph include, but are not limited to, making an order for disclosure in the form of Models A to E and requiring a party to make a witness statement explaining any matter relating to disclosure.”

The possibility of varying DRDs is also contemplated in PD 57AD para 7.12, which states:

“The List of Issues for Disclosure may be revised or supplemented at any time prior to or following the case management conference, including as a result of statements of case or amended statements of case subsequently served or discussions between the parties in relation to the Disclosure Review Document.”