Acting to stop harm: the FCA and Appointed Representatives
In the case of Global Marine Drillships Ltd v William La Bella & Ors (2014), the High Court found that it was not appropriate to strike out the claim on the grounds of non-compliance with a disclosure order, as the evidence as a whole was not sufficient to show that the disclosure had been incomplete.
The Claimant (“C”) alleged that it was owed large sums of money arising from a breach of a solicitors' undertaking. The second and third defendants to the claim (“D”) had difficulty extracting documents from C's former solicitors and were granted an application for specific disclosure. C did not meet the deadline and D issued a further application to strike out the claim for non-compliance. The judge ordered that unless C complied with the disclosure order its claim would be struck out. Disclosure was eventually made in a rush and contained privileged correspondence.
D submitted that the action should be struck out due to the inadequacy of evidence relating to the searches conducted which, had they been properly carried out, they claimed would have revealed further documents eligible for disclosure. D identified one email in particular that had not been disclosed. They contended that the fact that privileged documents had been disclosed did not constitute disclosure any more than it would if the documents had been blank.
C accepted that the initial stages of the disclosure had been ineptly done but at the moment, the only thing that D could point to was one missing email, the attachment of which had been disclosed. C further argued that it was not a breach to give too much disclosure and the inclusion of privileged documents had been an inadvertent mistake. C argued that any prejudice was minimal and would not delay the trial date and D's assertions that they expected to see more documents was very different to having evidence that those documents actually existed.
It was not appropriate to strike out a claim due to non-compliance with a disclosure order where the evidence as a whole was not sufficient to show that disclosure was incomplete.
The court was satisfied that the burden of showing non-disclosure had not been discharged. It was a case of inept compliance rather than non-compliance and in many ways this situation occurred due to the rush to meet the deadline. The inadvertent inclusion of privileged documents did not constitute a failure to comply with the order. An alleged failure to disclose had not been made out either. The fact that after all examinations and inquiries had been made, only a single short email had not been accounted for and that did not of itself prove that this email had been wrongly omitted from C's disclosure. It might not have been in C's possession and it had not been part of a pattern of similar omissions.
It is refreshing to know that even in a post-Mitchell world judges are taking a pragmatic approach when dealing with arguments over procedural errors in the course of litigation.
However, the full impact of the decision in Mitchell is still yet to be seen, and parties would therefore be wise to exude caution so as to avoid such situations in the first place, especially in such a vital task as disclosure.
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