[2024] EWHC 1238 (TCC)

The next application is for disclosure of documents referred to in the witness statements of Mr Jacobs, one of the administrators, which were before the court on the application heard on 22 March for an extension of time to comply with the unless order. The particular documents sought - I summarise - are those in paragraphs 8 and 9 of the draft order. The references which have been extracted from Mr Jacobs’ statements would, in most instances, appear to be, but are not necessarily, to a document or a collection of documents which amount to the things referred to in those paragraphs.

Prior to the hearing of the application on 22 March there was a flurry of witness statements. Mr Jacobs’ first witness statement on the application was supplemented by second and third witness statements and there were two further statements from solicitors, all relating to the application and the conduct of the application.

Mr Blackett seeks disclosure of the documents, assuming that that is what they are, referred to in Mr Jacobs’ statements, pursuant to the guidance in paragraph 21 of Practice Direction 57AD, which provides that “A party may at any time request a copy of a document which has not already been provided by way of disclosure but is mentioned in...” - and then there is a list which includes - “a witness statement”.

The Practice Direction provides that “Copies of documents so mentioned should be provided by agreement unless the request is unreasonable or there is a right to withhold production.” If that agreement is not forthcoming, paragraph 21.4 provides that “The court may make an order requiring a document to be produced if it is satisfied such an order is reasonable and proportionate as defined in paragraph 6.4.”

It appears to me that the overarching structure of that paragraph is one which assumes that the documents referred to are documents that would have been, or ought to have been, the subject matter of disclosure in the first place. I do not suggest that the paragraph is limited in that way, merely that that gives the flavour of the sort of disclosure that is anticipated by paragraph 21.

The documents, if that is what they are, that were referred to by Mr Jacobs are not documents that would have been the subject of disclosure because they were all concerned with the funding arrangements to be put in place, or which it was hoped would be put in place, to allow the administrators to pursue this litigation on behalf of the claimant.

Mr Blackett submits, however, that since the documents were referred to in a witness statement the default position should be that they are provided by agreement and, if not, that I should make an order requiring them to be provided. There is nothing unreasonable or disproportionate in making such an order because the documents are likely to be, in fact, of relatively limited compass and would have been available to Mr Jacobs when he was making his statement. That was done not very long ago and producing the documents that he was referring to a little over a month ago would in no way be unreasonable or disproportionate.

I have in mind, however, that paragraph 6.4 of the Practice Direction, in indicating the factors to be taken into account in considering whether disclosure of documents referred to is reasonable and proportionate, includes sub paragraph (3) in the following terms - “The likelihood of documents existing that will have probative value in supporting or undermining a party’s claim or defence.” That reference is, itself, consistent with what I have already said about the underlying assumption of paragraph 21.

Although all the other factors, or the majority of the other factors, may be in Accor’s favour in this respect, that particular factor seems to me to be very much in Lloyds’ favour. The documents referred to are all concerned with funding and will have no probative value in supporting or undermining a party’s claim or defence. Accordingly, I would need some persuading that it was reasonable and proportionate to order disclosure of documents which have absolutely nothing to do with the substance of this action.

In answer to that, Mr Blackett says that the statements given on the application for an extension of time do not fall away; they are still statements which stand; and the accuracy of what Mr Jacobs said in his statements, and which might be supported by or undermined by disclosure of further documents, might be relevant to the accuracy of, or any challenge to, any evidence that he might give in the future. In my view that is all utterly speculative. There is no particular reason why Mr Jacobs ought to give any further evidence and, as Mr Bowling has said, if he does then the onus will be on Accor to take up the point that any evidence that he gives should be supported by all the documents that he refers to and, if it is not, that the court may be disinclined to place much weight on what he says. I would add, as I said in my judgment, that Mr Jacobs, as administrator, is himself an officer of the court. He has obligations particularly to the Scottish court which, in effect, appointed him and I would take some persuading that I ought to proceed on the assumption that his statement might have been inaccurate and might have been inconsistent with documents that might have been referred to, so that the obtaining of those documents now, and even though they were not sought on the application, is a reasonable approach to take. But in any event it seems to me that the answer to this application lies in the fact that the documents have no probative value in this litigation and I, therefore, do not make the order that is sought by Accor in this respect.