KB-2022-003316 - [2025] EWHC 2930 (KB)

Whether documents held by the Research Team are in the control of the Claimants for the purposes of disclosure

Mr Thomson has provided two further witness statements – his Twelfth and Fourteenth – seeking to answer Ms Richmond’s criticisms of his Second Witness Statement and to address the issue of the documents held by the Research Team and whether they are within the control of the Claimants for the purposes of disclosure.

In summary, in his Twelfth Witness Statement, Mr Thomson says the following (more by way of argument than evidence) about the documents held by the Research Team:

In his Fourteenth Witness Statement, Mr Thomson apologises for the “shortcomings” in his Second Witness Statement (but without identifying what they are said to be). Although relying upon the engagement of the Research Team in April 2022 as being significant to whether documents are within the control of the Claimants, the Claimants have refused to provide a copy of the agreement between them and the members of the Research Team (“the Engagement Agreement”). In his Fourteenth Witness Statement, Mr Thomson stated, simply: “The Claimants consider documents underpinning the engagement of the Research Team to be plainly privileged”, later in the statement, Mr Thomson added: “The formal arrangement between the Claimants and the Research Team is subject to Litigation Privilege”.

Across Mr Thomson’s three witness statements, there are some consistent themes:

There is however a potential area of inconsistency/ambiguity between the witness statements (which may be the “shortcomings” to which Mr Thomson referred, but this is unclear). It relates to the scope of the 2021/2022 voluntary search carried out by those who were later to be engaged as the Research Team.

The Second Witness Statement could be read as suggesting that the Research Team searched “all their documents” and provided a set to the Claimants. The Twelfth and Fourteenth Witness Statements state that only Associated-related material was provided, not all documents from all roles or workstreams.

The specific responses of Sir Simon Hughes and Sadie Frost Law

As noted (see [10] above), the Order from the Second CMH required Sir Simon to carry out a specific search for documents relating to the “Mail business” and the meeting on 5 April 2016. Sir Simon has disclosed no further documents pursuant to that Order.

Although not strictly relevant to the determination of whether documents held by the Research Team are within the Claimants’ control for the purposes of disclosure, it is right that I set out, briefly, the responses of Sir Simon and Ms Frost Law

Sir Simon Hughes had not provided a witness statement in response to the documents identified in Ms Richmond’s Fourteenth Witness Statement (see [23] above). Mr Thomson, Sir Simon’s solicitor, has provided several witness statements since Ms Richmond’s Fourteenth Witness Statement but in none of these does he address or provide any explanation for the emails relied upon by Ms Richmond. Sir Simon’s position is that he will explain any apparent inconsistency between the documents and his case on his personal watershed moment in his trial witness statement. Mr White KC submitted that this answer was inadequate and that Associated needed proper disclosure of all documents relating to the “litigation camouflage scheme” from all relevant custodians, including Dr Harris and Mr Johnson.

Ms Richmond’s evidence was addressed on Ms Frost Law’s behalf in the Fourteenth Witness Statement of solicitor, Callum Galbraith. Mr Galbraith states that Ms Frost Law was not told about, shown or given copies of the Miskiw/Anderson Emails before her Personal Watershed Moment in January 2019. In response to Ms Richmond’s points, Mr Galbraith argues that the documents do not undermine Ms Frost Law’s position:

The Claimants’ voluntary disclosure of documents held by the Research Team

As noted already, the Claimants have refused to disclose the Engagement Agreement on the grounds that it is privileged. There is force in Mr White KC’s submission that the Engagement Agreement is likely to contain terms that would have a bearing on the status of documents held by the Research Team and whether the terms of the Engagement Agreement provide the Claimants with an enforceable right of access to documents held by the Research Team. Mr White KC argued that it is difficult to see how the Engagement Agreement between the Claimants and the Research Team could be privileged, especially when a solicitor’s retainer letter is not generally privileged (unless it contains legal advice, which can be redacted). He suggested that the Claimants are seeking to rely on the Engagement Agreement to limit the scope of disclosure whilst at the same time refusing to disclose it, which he contended was impermissible.

Nevertheless, Mr White KC argued that, even absent the Engagement Agreement, the evidence of voluntary access and cooperation by the Research Team members supported a finding of practical control by the Claimants over the documents held by the Research Team.

Mr Sherborne did not advance any legal argument seeking to justify the claim to privilege over the Engagement Agreement. He submitted that the Claimants were not relying on the terms of the Engagement Agreement to define control, but only on the date of engagement to identify the point at which documents held by the Research Team became subject to the Claimants’ disclosure obligations. Mr Sherborne’s main response was, like Mr White KC, pragmatic: the Research Team had voluntarily offered to provide access to documents, so the court did not need to resolve the privilege issue concerning the Engagement Agreement.

The extent to which members of the Research Team have, on the Claimants’ case, voluntarily provided documents to the Claimants is potentially of relevance to whether documents held by the Research Team are, as a matter of reality, within the control of the Claimants for the purposes of disclosure in these proceedings.

The evidence from Mr Thomson’s witness statements (particularly Twelfth and Fourteenth), shows that, in 2021, prior to their formal engagement, the members of what became the Research Team carried out a voluntary search of the material they held in hard copy and electronic form and provided some of it to the members of the Claimants’ legal team.

In his Fourteenth Witness Statement, Mr Thomson confirmed that:

“… all three individuals [Mr Johnson, Mr Waddell and Dr Harris] have agreed to allow full access to their document stores, email accounts and mobile app message stores for the period prior to the engagement of the Research Team, for supervised searches (relating to the limitation issue in respect of the Fifth and Seventh Claimants) to be carried out by a Claimant’s legal team of these sources of documents, and agreed to provide any relevant documents to the Claimants (who would then provide disclosure as appropriate to Associated).”

Whilst the parameters of any search will be determined by any order of the Court, not the members of the Research Team, it is clear that, as a matter of fact (and irrespective of whether the Engagement Agreement provides the Claimants with an enforceable right to obtain access to documents held by the Research Team), each member of the Research Team has agreed to allow access to his documents for the purposes of such disclosure searches.