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Costs of the Specific Disclosure Application
Costs of the Specific Disclosure Application
On 07 March 2023, the Defendant issued a disclosure application (“the Disclosure Application”) in which it sought disclosure of 4 discrete categories of documents (“the Additional Documents”) on alternative bases that (a) the Additional Documents should have been disclosed in accordance with the DRD and (b) Section 1B of the DRD be varied to include the Additional Documents.
The Disclosure Application was compromised two days before the hearing on terms which required the Claimant to provide the majority of the Additional Documents (“the Disclosure Order”), but the costs of the Disclosure Application were reserved to the conclusion of the trial.
In very broad summary:
The Defendant’s position is that it is entitled to its costs of the disclosure application because as a result of the compromise reached with the Claimant, the Claimant agreed to provide and did provide the majority of the documents sought. Further, the Claimant only provided those documents because the Defendant issued the Disclosure Application.
The Claimant’s position is that the Defendant’s criticisms of the Claimant’s disclosure process are unfounded and that the Defendant was seeking to obtain further extensive disclosure which it had not sought at the time the DRD was agreed. The Claimant reasonably agreed to conduct further disclosure searches in order to avoid a hearing and further discussions then took place between solicitors which refined these search terms such that the disclosure ultimately agreed to and undertaken was materially narrower to that initially sought by the Defendant. The Claimant also submitted that ultimately the disclosure did not assist the Defendant in defending the claim.
The inevitable difficulty that I am faced with is that I am being asked to second-guess what would have happened if a contested disclosure application had been heard and whether the documents originally sought or a sufficient sub-set would have been deemed relevant and disclosable such that the Defendant was entitled to its costs of the application. That is not an exercise which I can now easily undertake nor is it an exercise which it seems to me it is fruitful to undertake in circumstances where the parties did cooperate to resolve the application. I consider that the fair order in all the circumstances is that there should be no order as to the costs of the Disclosure Application so that each party bears their own costs of that application.