KB-2025-001228 - [2025] EWHC 2506 (KB)

Even if I had taken a more favourable view of the Defendants’ position on issue (ii), I would have been likely to conclude that the specific disclosure order sought was not reasonable, proportionate or consistent with the overriding objective.

Phones 4U and other decisions highlight that providing disclosure of documents which are, as a matter of law, within the control of a party, but are within the physical possession of another party, is by its nature a time-consuming and complex issue. Careful consideration needs to be given to the reasonableness and proportionality of any order, having regard to the issues in dispute and the material which will already be before the court at trial.

Here, the Claimants’ ability to provide disclosure is dependent on NEC providing consent to searches being undertaken of the NEC Custodians’ email accounts. Those email accounts will contain a vast quantity of documents which the Claimants have no right to review. This will include documents concerning the Claimants which are confidential to NEC and documents which are completely unrelated to the Claimants. The Claimants would therefore be unable to comply, in practice, with the order proposed by the Defendant, other than to request NEC to provide the documents voluntarily.

Moreover, Birkby 1 and NEC’s submissions set out in detail the very considerable logistical and financial difficulties with organising any mechanism for providing the disclosure sought, especially given the timeline to the October trial. Ms Birkby explained that the process would involve the assistance of an e-disclosure provider and a lawyer-led manual review; likely cost in excess of £100,000; and would in all likelihood not be completed before the trial.

Therefore, even if the documents were of marginal relevance, a specific disclosure process would be liable to waste time and costs and divert the parties’ attention from the central issues in the upcoming trial. Such a process would not, therefore, be consistent with the overriding objective.

The Defendants’ application for disclosure of the NEC Custodians’ personal devices raised similar issues, as it amounted to a further request for documents that are not within the Claimants’ possession. Disclosure would rely on the NEC Custodians voluntarily providing access to their devices. Any order in respect of these devices would need to be consistent with the NEC Custodians’ Article 8 right to privacy; and any mechanism for obtaining such documents would be similarly problematic in reasonableness and proportionality terms. It was also otiose insofar as it related to Mr Joseph who only used NEC devices for the purposes of his role.

For all these reasons the specific disclosure application is dismissed.