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Automatic right for an order for specific disclosure? Not without justification

12 October 2017

The application made by the claimant in Hutchison 3G UK Ltd v EE Ltd (2017) QBD (Comm) (06 October 2017) for an order for specific disclosure against the defendant was refused by the court.

The parties had reached agreement as to how the disclosure exercise would be conducted and set out in a schedule, the searches the parties would make. The defendant claimed privilege over a large proportion of documents and emails held by its corporate counsel. The claimant argued that standard disclosure should have revealed a larger number of briefing materials and meeting minutes from the defendant’s management committees and that privilege could not be claimed over those documents.

The claimant submitted that the defendant had taken an incorrect approach to determining privilege in relation to documents sent between the corporate counsel and non-legal employees and that specific disclosure should be ordered of those documents.

The court held that the correspondence contained a clear statement by the defendant’s solicitors that they had applied the law as it was understood by both parties and this had not been challenged. The claimant failed to explain why it believed further documents existed which had not been disclosed under the previous searches, or what further searches it thought could be carried out and as a result failed to satisfy the relevant test which would allow for specific disclosure to be ordered.

An order for specific disclosure should only be sought if it can be established that the other side have failed to disclose documents which will make a real difference to the case. Disclosure must be proportionate in terms of the time and costs involved in accordance with the Civil Procedure Rules.

The distribution and control of information and documents of a legal and non-business nature must be kept confidential between the legal advisors and the people within the business directly instructed to deal with them to avoid losing any claim that they are privileged. A wider distribution could fall short of the requirements to satisfy a claim for privilege. It is important that corporate entities give proper consideration about the question of privilege and how widely documents should be shared. 

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Mia Plume

Mia Plume

Associate (Chartered Legal Executive)

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