J90PE914 & K00LU633 - [2025] EWHC 2640 (KB)

At a directions hearing on 31 May 2023, which included listing this matter for an Early Neutral Evaluation before a property Recorder, the parties were ordered to carry out standard disclosure by list by no later than 4pm on 21 June 2023. The disclosure on the part of the claimants was limited to 136 documents. Ms Saunders, the second Defendant, who had retired from being a solicitor more than 35 years before carrying out the disclosure exercise on her behalf and on behalf of the first claimant, Abbotsley. The court had indicated that she was likely to benefit from instructing solicitors, given her ability and willingness to spend very large sums of money on leading and junior counsel, but she was determined to do that work herself despite her lack of recent, or any significant, litigation experience. The court cannot force a party to instruct solicitors if they decide they wish to act in person but it is very unusual for someone to not instruct solicitors but then instruct expensive counsel. It indicates a desire to control the underlying framework of the litigation and has the impact of avoiding the oversight a solicitor would bring to a case in fulfilment of their own professional obligations. In this case, it meant that disclosure was not undertaken as it ought to have been.

Ms Schalker has set out in her statement that Pheasantland was surprised about the lack of disclosure given the nature of the dispute and the manner in which Ms Saunders creates copious amounts of documentation and records everything in writing. On 16 June 2023, Debenhams Ottaway LLP sent a 3 page letter to Abbotsley and Ms Saunders setting out what standard disclosure entails and referring to documentation that they would be expecting to see – for example documentation with Wilsons relating to the grant of the Lease to Luddington (acknowledging that some of that documentation might be privileged), documentation that employees might hold, documents relating to American Golf, documents between Abbotsley or Ms Saunders and Luddington, documents relating to the “discrete oral contract” pleaded in the particulars of claim, documents relating to the assignment of the Lease from Luddington to Norwegian Log Chalets Limited, documents relating to the assignment of the Lease from Norwegian Log Chalets Limited to PI Estates, other documents held by third parties, and any documents relating to the Lease. I am not repeating the full contents of that letter, but it is clear that the solicitors had very real concerns that there were gaping holes in the disclosure that Ms Saunders had provided.

Ms Saunders responded in detail by her letter dated 19 June 2023 setting out that she had complied with her disclosure obligations, that some documents were old and deteriorated and some were on “floppy discs” which could no longer be read. She said that she thought the correspondence with the solicitors was “advice privileged” but she had reviewed the documents she had in the filing cabinets, specifically with respect to Land Registry issues, and she attached an amended disclosure list including overage payment details and ground rent calculations. She also alleged that the first defendant had failed to comply with its disclosure obligations and that Robert Verdier (the owner of lodge 10 Abbotsley Country Homes and a friend and supporter of Ms Saunders) had sent a bundle of documents which she believed Pheasantland ought to have disclosed. Again, the full contents of that letter are not being cited here but I have read the full contents and taken them into account. Ms Saunders attached an updated list with 165 documents. It is clear from reading that letter that the position of Ms Saunders at that time was that there was no further outstanding disclosure, the clear implication being that all documents that ought to be disclosed had been disclosed.

Ms Saunders alleged in response that the disclosure on behalf of Pheasantland was “woefully lacking”. Ms Saunders had disclosed, on the second occasion, a total of 165 documents. Pheasantland, which had a much shorter involvement with the “chalet land” than Ms Saunders and Abbotsley, disclosed 1819 pages of documents and further, approximately 700, photographs and video clips. On the face of those figures, there is a considerable imbalance in disclosure and the parties which have the greatest involvement and for a much longer period, namely Abbotsley and Ms Saunders, disclosed much less.

Despite Pheasantland disclosing further documents, amounting to nearly 9,000 pages and carrying out a search of documents using the words “water” and “supply”, Ms Schalker says that Ms Saunders continued to complain. At the same time, she says that Abbotsley/Ms Saunders failed to disclose anything like the same amount of documentation, despite having been involved in the negotiations for the lease, the Lease itself and all other documentation relating to the supply of water. There were further documents relating to the water dispute which Ms Saunders chose to disclose to Mr Warren and Mr Brindley, as occupiers of the cottages but not to Pheasantland.

With respect to the second, forfeiture, claim against Pheasantland, the directions provided for disclosure by list by 28 January 2025. The order, dated 15 January 2025, set out what needed to be disclosed.

The evidence of Ms Schalker provides that Pheasantland’s disclosure list was 21 pages in length. On 13 February 2025, Ms Saunders/Abbotsley were asked for disclosure of any redevelopment plans. Further disclosure was provided by Ms Saunders/Abbotsley on 21 March and 24 March and 27 March 2025. At the pre-trial review on 1 April 2025, Ms Saunders was ordered to provide a statement explaining the late disclosure of documentation by 11 April. Further disclosure was provided on 3 April 2025 and a witness statement was provided by Ms Saunders on 15 April 2025.

In the disclosure that took place on 24 March 2025, nearly two months after it should have taken place, Ms Saunders disclosed for the first time that Mr and Mrs McDermott, the owners of lodge 1 at Abbotsley Country Homes, had instructed solicitors to respond to the claim for forfeiture back in 2023. In Ms Saunders’ witness statement she said that she had only thought about considering the point after seeing the witness statement of Mr and Mrs McDermott. In my judgment this shows, at the very least, a woeful lack of understanding of what is needed when undertaking disclosure. Ms Saunders’ lack of understanding and/or willingness not to comply with the duties of disclosure was highlighted in her own witness statement where she said:

“ I know that I have been criticised for not having solicitors on board to deal with disclosure. However, the disclosure process is only as good as the information provided by a client to a solicitor. Had we had solicitors instructed in the case I would not have thought to provide this document.”

This completely misunderstands the duties of disclosure and the duties of a solicitor. A solicitor would ensure that proper searches would be carried out, and documents disclosed, in order that those documents could be considered during the trial, and evidence called and tested. It is an essential part of the trial process to enable parties to know the case that they have to meet and that the court can make decisions confident that all available evidence is before the court.

Further disclosure was provided by Ms Saunders on 5 May 2025 and, during the trial, Ms Saunders continued to reference documents that had not been disclosed. During the evening of 3 June 2025, immediately before Mr Walker a director of Pheasantland and the individual against whom Ms Saunders has the greatest complaint, was due to give evidence, Ms Saunders provided yet further disclosure. Subsequent to the closure of evidence and final written and oral submissions being given on her behalf, Ms Saunders instructed her counsel that she had sold the defunct hotel and sports complex for development and that would alter the situation with respect to the supply of water. Leading counsel was placed in the embarrassing situation that she had to address the court in the middle of closing submissions being made on behalf of Pheasantland to inform that there had been a further failure to disclose documents that ought to have been disclosed. A direction was made for Ms Saunders to provide that further disclosure with respect to the sale of the hotel and sports complex. Unfortunately, Ms Saunders has misinterpreted that direction as being a justification to create further documentation to “disclose” after evidence has finished and closing submissions have been made. Despite an order being made on 18 August 2025 that she desist from that behaviour, Ms Saunders has persisted in creating and providing further documentation, entirely ignoring the fact that she is putting before the court new evidence which the defendants did not have opportunity to consider before the trial, challenge during trial, or adduce their own evidence during the trial. The concern expressed by Pheasantland is that it is impossible to have a fair trial given the seriousness of Ms Saunders’ various failures. Certainly, it appears that she has no understanding of the litigation process, the civil procedure rules, or that there are other parties involved in this litigation who also need to be treated fairly.