HT-2023-000250 - [2025] EWHC 1354 (TCC)

By application dated 20^th December 2024, as amended on 5^th February 2025 with permission from Roger ter Haar KC given at the CMC on 24 January 2025, the Defendant (“JLR”) seeks the following relief against the Claimant (“Kyndryl”):

“The Defendant seeks an UNLESS Order requiring the Claimant to provide sufficient and proper Responses to Requests 1-7, 8, 9 and 11-14 of the Defendant’s First Request for Further Information dated 25 September 2024 and Requests 1-3, 4-6 and 7.2 of its Second Request for Further Information dated 8 November 2024 (Requests 20-22, 23-25 and 27.2 in the Claimant’s Response) (the “Requests”), failing which the claims to which such Requests relate be struck out. The Defendant seeks permission to amend Request 15 of the First RFI to delete the words “of the Variation Agreement”. The Defendant seeks an Order under CPR Part 18 requiring the Claimant to provide sufficient and proper Responses to Requests 15-17 of the Defendant’s First Request for Further Information dated 25 September 2024 and Requests 9-13 of its Second Request for Further Information dated 8 November 2024 (Requests 36-40 in the Claimant’s Response).

This Judgment deals with the application under the following headings:

As will be further discussed below, this matter was the subject of an extensive interlocutory hearing before Mr David Quest KC, sitting as a Deputy Judge of the High Court, in July 2024.

I gratefully adopt his summary of the background:

“The parties

It should be noted that Kyndryl seek to advance a very broad, merits-based case. Whilst there is scope for debate as to the legal basis and factual accuracy of the claim made, the breadth of the case put forward is of importance when considering the present application. Of course, for present purposes, one should assume that the claim has real prospects of success in the light of the judgment of Mr Quest KC.

This is put as follows in Kyndryl’s skeleton argument:

“17.

The question posed by this case is whether, on consideration of the full facts of the case, the Claimant (as IBM’s assignee) is entitled either to a contractual or restitutionary remedy to provide it with compensation for providing services for nearly five years in a way which was not what was contemplated or agreed; or whether the Defendant will “get away” with stringing IBM along for five years, all the while receiving services which it understood did not reflect what the parties had anticipated and agreed when they extended the DCHA.

18.That is important. The Claimant’s case is not a granular case. It is not advancing a claim which requires the court to consider the details of hundreds of individual requests made every day for five years (totalling well over 100,000 over that period), and to consider the extent to which each individual request gives rise to an additional entitlement to compensation.

19.

It ought not to be controversial that, as a matter of fact, IBM maintained the Defendant’s IT estate in its legacy environment from January 2017 until the end of the contract period in October 2021 and that because of the age of the estate that became increasingly difficult, time consuming and expensive. The Claimant’s case is that it is entitled to compensation to reflect the fact that for nearly five years it was having to provide a service which was not the service which the parties had anticipated and agreed that it should provide. The Claimant’s case depends only on a high level analysis of interactions at a management level, in which the fact of the hundreds of daily requests are relevant context but not the crux of the case.”

The Claim Form was issued on 20^th July 2023. Pleadings were exchanged between then and February 2024.

On 20^th February 2024, JLR issued an application for summary judgment and/or to strike out the claims against it. There was also a cross-application by Kyndryl by notice dated 12th June 2024 to amend its Particulars of Claim. The applications were argued over two days in July 2024.

Mr Quest delivered his judgment on 18^th September 2024. This was substantially in favour of Kyndryl. The resulting order of 27^th November 2024, made after a contested consequentials hearing, provided as follows:

“IT IS ORDERED THAT:

Strike Out Application

2.

There be summary judgment for the Defendant in relation to the Claimant’s claim that there was an express or implied term as set out in paragraph 15.2 of the Particulars of Claim and its claim that there was a breach of such a term as pleaded at paragraphs 45, 49, 70 and 71 of the Particulars of Claim and such claims are struck out.

3.

Save as appears in paragraphs 1 and 2 above, the Strike Out Application is dismissed.

Amendment Application

4.

The Claimant has permission to amend its Particulars of Claim in the form of the draft amendments provided to the Court on 25 November 2024.

RFI Application/Further Directions

By order dated 10^th February 2025, Mr Roger ter Haar KC, sitting as a deputy High Court Judge, gave directions leading to a trial in October 2026, with a time estimate of 22 days. This order provided for sequential exchange of witness statements and forensic accountant experts’ reports, with Kyndryl to go first in both instances.

The present application is concerned with requests for further information. The court’s powers in this respect are set out in CPR part 18.1 as follows:

“(1)

The court may at any time order a party to—

(a)

clarify any matter which is in dispute in the proceedings; or

(b)

give additional information in relation to any such matter,

whether or not the matter is contained or referred to in a statement of case.”

Practice Direction 18 provides at para 1.2 that “A Request should be concise and strictly confined to matters which are reasonably necessary and proportionate to enable the first party to prepare his own case or to understand the case he has to meet.”.

I have emphasised in the above passages wording which seems to me of particular relevance.

The relevant principles were recently summarised by Mr Richard Salter KC, sitting as a Deputy High Court Judge, in HRH Prince Khaled Bin Abdulaziz Al Saud v Gibbs [2022] 1 WLR 3082, and I gratefully adopt what he says there:

“35.

In my judgment, the requirement of the rule that the information sought must relate to a "matter which is in dispute in the proceedings", and therequirement of the practice direction that any request must be strictly confined to matters which are reasonably necessary and proportionate for one or other of the stated purposes, are threshold conditions. If those conditions are not satisfied, then the court simply has no jurisdiction to make any order under CPR Pt 18 (though, as Thirlwall J has pointed out, there may be other powers available to the court to assist in avoiding the waste of time and costs and in achieving the "swift and .. proportionate and economical litigation" referred to by Irwin J).

36.

If, however, those threshold conditions are satisfied, then the question becomes a matter for the court's discretion. The power under CPR Pt 18 is one of the court's case management powers, and its exercise should be considered in the context of the overall case management of the action: see Toussaint v Mattis [2001] CP Rep 61 , CA, at [16], per Schiemann LJ.

37.

CPR Pt 1.2 requires the court to seek to give effect to the overriding objective when considering whether and, if so, how to exercise a power such as that under CPR Pt 18. As Roth J noted in the cartel case of National Grid Electricity Transmission plc v ABB Ltd [2014] [EWHC] 1555 (Ch) at [39]:

A Part 18 request .. is to be interpreted in the light of the overriding objective and is part of the more open approach to litigation which the CPR seeks to establish and promote.

38.

As the notes at paragraph 18.1.10 of the White Book state, that will usually mean in cases involving CPR Pt 18 having regard:

.. (a) to the likely benefit which will result if the information is given and (b) to the likely cost of giving it; and (c) whether the financial resources of the party against whom the order is sought are likely to be sufficient to enable that party to comply with such an order ..

39.

The requirement in the Practice Direction that requests under CPR Pt 18 must be strictly confined to matters which are reasonably necessary and proportionate for one or other of the stated purposes reflects that fact that requests and orders under CPR Pt 18 are not an automatic aspect of the progress of litigation under the CPR , and should not therefore be made as a matter of routine.

40.

Statements of Case, if properly drafted, should already contain all the information necessary to define the issues which the court has to decide and to ensure that each party knows the case which it has to meet: see eg Ventra Investments Ltd v Bank of Scotland [2019] EWHC 2058 (Comm) at [22] to [25] . Moreover, clarity is usually better served by brevity than prolixity. As Lord Woolf MR pointed out in McPhilemy v Times Newspapers Ltd and others [1999] 3 All ER 775 at 793:

.. As well as their expense, excessive particulars can achieve directly the opposite result from that which is intended. They can obscure the issues rather than providing clarification …

41.

It follows that it will not usually be either necessary or proportionate (or in accordance with the overriding objective) for the other party to request (or for the court to order) a party who has served a compliant but concise statement of case to expand upon that pleading by the provision of more detailed further information.

42.

In cases begun using the procedure in CPR Pt 7, disclosure under CPR Pt 31 will normally be followed by the exchange of witness statements under CPR Pt 32. It will therefore also not often be necessary or proportionate (or in accordance with the overriding objective) for the other party to request (or for the court to order) a party to provide at any earlier stage information which will in due course be revealed on disclosure or which will be contained in those witness statements or in expert reports: see eg National Grid Electricity Transmission plc v ABB Ltd [2012] EWHC 869 (Ch) at [73] to [74] , per Roth J, and Stocker v Stocker [2014] EWHC 2402 (QB) at [27] , per HHJ Richard Parkes QC (sitting as a judge of the High Court).

43.

Of course each case must depend upon its own facts. As Schiemann LJ went on to say in Toussaint (supra), "The court now has a wide range of case management powers, and they are capable of being used flexibly to meet the precise needs of an individual case".

44.

There will always, regrettably, be cases in which the statements of case do not, as they should, ensure that each party knows the case which it has to meet. There will also be other cases in which the court can be satisfied that "a clear litigious purpose will be served" (per Lord Woolf MR in Hall v Sevalco (supra)) by ordering the provision of further information either at an earlier stage or in a more extensive fashion than would normally be the case under the CPR. Such cases may, perhaps, include those where a clearer early understanding of the other party's position than can be obtained by correspondence is realistically likely to help the parties to narrow the issues between them, to avoid wasting costs on unnecessary steps connected with the litigation (eg in relation to disclosure, witnesses of fact or expert witnesses), or to promote settlement.

45.

The burden must nevertheless always be on the party seeking an order under CPR Pt 18, both to demonstrate that the threshold conditions identified in paragraph 35 above are met and (to the extent not already implicit in the satisfaction of those conditions) to satisfy the court that, in all the circumstances, the making of such an order would assist in dealing with the case justly in accordance with the overriding objective.

46.

One of the complaints made by the claimants about Mr Gibbs' responses to the RFI is that they show that he has failed to exercise reasonable diligence in examining relevant documents and undertaking reasonable enquiries. Mr Atrill invited my attention to the following passage in paragraphs [20.96], [20.98] and [20.101] of Matthews and Malek, Disclosure (5th edn, Sweet & Maxwell 2017):

.. It is incumbent upon a party responding to a Request to a Pt 18 order to exercise reasonable diligence in formulating a response ..

.. [T]he court is likely to regard a party [as] being under a duty to undertake reasonable enquiries, but what constitutes reasonable enquiries will depend on the circumstances .. [A] party is not bound to make enquiries to the extent that such enquiries place an unfair or oppressive burden on him ..

.. If it is necessary for the purposes of responding to a Request, the party must examine the documents in his control .. or that of his servants or agents held in that capacity. If a such search would be unduly burdensome, then that may be a ground for objecting to the Request ..

47.

In my judgment, those passages accurately state the law in this area. I would, however, add this rider. Where, as in the present case, a request under Pt 18 has already been answered, and the objection is that the answer given is inadequate because reasonable diligence has not been exercised, the proper way forward will not usually be to ask the court (as the claimants in the present case have done) simply to order that the original generally worded request should be answered again. Such a course will often just postpone until an application for sanctions for non-compliance or for relief from such sanctions is made the inevitable issue of what reasonable diligence in formulating a response to that request - and thus compliance with the order – actually requires. By that time it is likely to be too late to consider the appropriateness of the scope of the original order: see eg Griffith v Gourgey [2015] EWHC 1080 (Ch) at [40] and [54 (1)].

48.

The better course will usually be, wherever possible, to ask the court to specify in its order precisely what further enquiries the party responding to the Pt 18 request should carry out, so that the issue of what proper compliance requires is plainly defined from the outset.”

I agree with Mr Salter that each case must depend upon its own facts. It is germane to note here that:

This application seeks unless orders. A court should always be cautious, in my view, in making such orders on the basis of the failure to provide particulars of a case. A point of this kind was considered by the Court of Appeal in QPS Consultants v Kruger Tissue [1999] BLR 366. (Footnote: ¹) Simon Brown LJ, as he then was, noted that: