CL-2022-000699 - [2025] EWHC 1948 (Comm)

I do not regard the Claimants’ failure to provide a statement of costs prior to the DGH as something which prevents the Claimants from seeking a different costs order to that provided under paragraph 11.3. It was in my view foreseeable to both parties that, depending on the outcome of the DGH, one or other party would be likely to seek an order for costs and neither approached the hearing in a different way because no statements of costs had been served. Further, the late submission of the schedule does not appear to have caused any difficulty to the Second Defendant in dealing with costs nor has it caused the Court any difficulty in dealing with a summary assessment.

I accept that the ordinary costs position found in PD57AD §11.5 reflects the expectation that a disclosure guidance hearing will be one at which the Court gives informal guidance to the parties as to the manner in which they carry out a particular aspect of disclosure. In Quadrant Housing Trust, the Court made a different order for costs because it considered that the questions of privilege raised by the claimants’ application was not properly the subject of disclosure guidance but should have been brought as a separate application. Underlying Jefford J’s decision in Quadrant Housing Trust was her finding that the application went well beyond the scope of informal guidance, even allowing for the fact that disclosure guidance is a tool which is still intended to be available for substantial claims and may require time for pre-reading and hearing going beyond the ordinary maximum hearing length and maximum pre-reading set down in PD57AD §11.

A similar position arises in the present case. Although the application is one for disclosure guidance, the manner in which it has been conducted by the parties is consistent with a heavily contested disclosure application rather than an application for informal guidance envisaged by PD57AD. As already outlined in paragraph 5 above, both parties instructed counsel for the hearing; in the case of the Claimants including leading counsel. The hearing took slightly longer than the 2.5 hours allowed.

So far as it is suggested that the hearing addressed matters which could otherwise have been dealt with at the first CMC if the parties’ preparation had allowed, I am sceptical as to whether this would have been the case. But in any event, I have no doubt that the issues which I have resolved at the DGH would still have been heavily contested as if by way of separate application even if time had allowed for the disclosure issues to be addressed at the first CMC.

So far as the Second Defendant relies on alleged delays on the part of the Claimant in preparation for the first CMC as being causative of the need for the DGH, I am not in a position to make any sensible determination as to whether any delays in agreeing appropriate disclosure parameters cannot obviously be ascribed to one party rather than another. It appears that the Claimants and other Defendants considered at the first CMC that more time was required for the parties to seek to agree relevant search terms.

So far as the Second Defendant complains about delays by the Claimants in providing hit counts prior to the DGH, I do not accept that the Second Defendant would have adopted a different approach to the DGH even if he had received the hit counts sooner. Having received the hit counts, the Second Defendant continued to press at the hearing for the additional search terms he sought in respect of the Gemini Custodians and the VCUK Custodians.

I accept that the mere fact that other Defendants have previously agreed the scope of disclosure with the Claimants does not mean that the Second Defendant’s challenges to the Claimants’ position on the scope of disclosure were necessarily without merit. However, I do consider that there is considerable force to the Claimants’ submissions that:

I also consider that when it comes to assessing the relative success of the Claimants and the Second Defendant at the DGH, the Claimants are correct that:

Further in relation to Deloitte’s investigations, the Model C disclosure ordered relates only to the Claimants’ claim to recover costs allegedly incurred in relation funding those investigations rather than the wider search sought by the Second Defendant for documents created in the course of Deloitte’s investigations.

The matters discussed in paragraphs 13 to 19 above are, I conclude, sufficient to justify a departure from the default position in paragraph 11.5 of PD57AD and to justify an order that the Second Defendant pay the Claimants’ costs of the DGH to be summarily assessed.

I do not consider that I should make any reduction to the Claimants’ costs to reflect any delay on the part of the Claimants. As set out above, I do not consider that it is possible to assign any responsibility for any delay and in any event I am not persuaded that the Second Defendant would materially have changed its position on the search terms if hit counts were available earlier. I do consider it appropriate to reduce the Claimants’ costs by 10% to reflect the Second Defendant’s limited success on certain issues.