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

Overall, the Claimants were the successful parties in relation to almost all of the disputed points.

The Claimants succeeded on grounds which they had articulated from the outset; see for example correspondence dated 16 September 2024, 10 December 2024 and 07 February 2025.

Costs were incurred because (i) the Second Defendant went out on a limb, challenging the scope of disclosure which had been agreed with all the other active Defendants, (ii) the Second Defendant’s approach was sweeping in nature and (iii) the Second Defendant was unwilling to compromise prior to the hearing.

Extensive costs have been incurred in relation to an application, which went well beyond the usual one hour time limit for disclosure guidance hearings. In effect, the application was a weighty application for specific disclosure and it is appropriate that the claimants should be entitled to recover their costs when their resistance was justified. It would be wrong, if having successfully resisted the Second Defendant’s approach, the Claimants were left out of pocket in respect of the costs of doing so.

The Claimant did not serve a statement of costs before the DGH as PD44 at paragraph 9.5(4)(b) requires. The Court should take this failure into account in deciding what costs order to make.

The fact that PD57AD §11.5 provides that costs will be in the case unless otherwise ordered reflects the fact that resolution of disagreements over disclosure is part and parcel of case management and anticipates close cooperation between the parties.

The Court in London & Quadrant Housing Trust & Ors v. WPHV Ltd & Ors [2024] EWHC 1122 (TCC) at [15] held that an application in relation to redactions and privilege was not properly brought because it did not have the characteristics of an application for informal guidance.

The DGH served the function of resolving case management issues stood over from the first CMC and which would have been resolved at that CMC if the Claimants had been sufficiently prepared for that hearing.

The work which the Claimants were required to do in response to the Second Defendant’s application is work which is part of the ordinary course of litigation where agreement on search terms is required.

The Second Defendant was successful on key issues raised by his application.

The Claimants’ objections to the Second Defendant’s proposed search terms were based on hit counts provided only shortly before the hearing despite the Second Defendant’s requests for this information being made in October 2024.

A DGH was necessary because the Claimants’ delays meant active case management from the Court was required. Further, the parties were not going to narrow the issues remaining in dispute without a DGH.

The fact that other Defendants have not joined with the Second Defendant’s application is not a good point taking into account the limited resources of some of the Defendants and the differing roles of Defendants within the litigation. In any event, the fact that other Defendants have not supported the Second Defendant’s application does not mean that it was meritless.

The default position on costs under paragraph 11 is no more than a starting point. There are examples of the Court departing from the default position; see London& Quadrant Housing Trust & Ors cited above and Excelerate Technology Ltdv. West Midlands Ambulance Service NHS University Foundation Trust [2024] EWHC 177 (TCC). Further the Second Defendant has not addressed the Claimant’s point that the Application was essentially a heavy application for quasi-specific disclosure.

In terms of time at the hearing, far more time was spent on the issues for which the Claimants were successful than on the issues for which the Second Defendant was successful. Further the overall volume of new documents generated by the searches which have been directed is significantly smaller than the volume generated by the searches which the Second Defendant sought.

The suggestion that the need for the DGH stemmed from the Claimants’ conduct is fanciful. The Second Defendant adopted a unreasonable and disproportionate approach demanding additional search terms producing hundreds of thousands of additional hits. Further, the fact that the Claimants showed a willingness prior to the hearing to accommodate some of the Second Defendant’s requests is an illustration of a reasonable approach to disclosure.

The suggestion that hit counts were produced late has no credibility because (i) it was obvious that the generic terms proposed by the Second Defendant would produce a large number of hits if used without connectors, (ii) the Claimants had previously provided hit counts for disputed terms to no avail and (iii) when a full range of updated hit counts were provided on 09 April 2025, the Second Defendant pressed ahead with the hearing notwithstanding the large volume of documents for review that the hits would generate.