Neutral Citation Number [2013] EWHC 4251 (Ch)
Case No:  HC12D01427
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

Rolls Building
Fetter Lane
London 
EC4A 1NL

Date: Monday, 9th December 2013

Before:

MR EDWARD MURRAY 

(Sitting as a Deputy Judge of the Chancery Division)
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B E T W E E N:

EDWARD SCRIVEN
-v-
LEE SCRIVEN & OTHERS

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Transcript from a recording by Ubiqus
61 Southwark Street, SE1 0HL
Tel: 020 7269 0370
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JUDGMENT (Approved)
THE DEPUTY JUDGE: 
1.	This is an application by the claimant, Edward Scriven, to obtain specific disclosure from the fourth defendant, Evans Mockler Ltd, of documents and classes of documents listed in a schedule to the application.  
2.	In relation to this application I have been asked to review quite a lot of evidence, including numerous witness statements.  I will take these in chronological order by witness.  First, I have five witness statements of Mr Stephen Bane, a Solicitor of Neumans LLP, which is conducting this case for the claimant.  In particular, I was asked to consider Mr Bane’s third, fourth and fifth witness statements, the third one dated 2nd October 2013, including various exhibits, several of which were highlighted for me, including correspondence between Robin Simon (solicitors for the fourth defendant) and Neumans in January, February and April of 2013, as well as a further letter of 16th August 2013 from Neumans to Robin Simon and a response of 2nd September of Robin Simon to Neumans.  The fourth witness statement of Mr Bane is dated 14th October 2013 and the fifth is dated 25th November 2013.  
3.	I have also had the witness statement of Mr Martin Mockler, who is a chartered certified accountant and managing partner of Evans Mockler Ltd, the fourth defendant.  His witness statement is dated 12th April 2013and was prepared in response to an order of Master Price dated 1st March 2013.  I also have Mr Mockler’s witness statement dated 11thOctober 2013 and his further witness statement dated 6th December 2013.  
4.	I have reviewed a witness statement dated 14th October 2013 of Mr Paul Chaplin, a chartered legal executive and a director of Triton Global Ltd, trading as Robin Simon.  I have also reviewed his witness statement of 4th December 2013 and his further witness statement of 7th December 2013.  
5.	I also had the benefit, of course, of the application itself and the schedule to that application.  Part of that application dealt with specific disclosure requests against the fourth defendant that were part of this case management conference, which began before Master Price on 14th October 2013.  Of course, I have been taken to many items of correspondence in the exhibits to the various witness statements, and I have had the opportunity to review a report dated 20th November 2013 from an expert for the claimant dealing with issues of quantum.  
6.	My attention has also been drawn to various authorities including CMCS Common Market Commercial Services v Taylor [2011] EWHC 324 (Ch), a judgment of Mr Justice Briggs (as he then was) in 2011, regarding a solicitor’s duty to ensure, as far as possible, full and proper disclosure is made of all relevant documents.  Regarding the duties of a solicitor in relation to disclosure more generally, my attention was drawn, in particular, to paragraph 36 of that judgment, where Briggs J summarises the rules by reference to the authoritative commentary Matthews and Malek on Disclosure and the House of Lords case of Myers v Elman [1940] AC 282.  I have also been referred to Axa Sun Life Services v Cannon [2007] EWHC 2466 (QB), a 2007 decision of Mr Justice Tugendhat which itself quotes from the White Book and a passage from Woods v Martins Bank Ltd [1959] 1 QB 55 and the case of Hedrich v Standard Bank London Limited [2008] EWCA Civ 905 was also drawn to my attention, which was also discussed by Briggs J in CMCS Common Market Commercial Services.
7.	I have also had regard to West African Gas Pipeline v Willbros Global Holdings Inc. [2012] EWHC 396 (TCC) and of course several provisions in the White Book, including Civil Procedure Rules 31.5 and 31.6 as to standard disclosure and what documents are to be disclosed and 31.8 as to the duty of disclosure regarding documents which are or have been in the parties’ control.  CPR 31.8 is, of course, relevant in relation to the issue of whether the Highstone companies were acting as agents of the fourth defendant.  The commentary on CPR 31.8 at para 31.8.2 of the White Book clarifies that the duty of disclosure extends to a party’s documents in the possession of an agent, but not to the agent’s own working papers.
8.	I have also had regard to the commentary in the White Book at para 31.10.6 as to the duties of solicitors in respect of disclosure and of production of documents by their clients.  I have also had regard to CPR 31.11 on the continuing duty of disclosure during proceedings and 31.12 on specific disclosure.
9.	I have reviewed the evidence and had the benefit of thorough and very clear submissions of counsel from both Mr Bernard Weatherill QC for the claimant and Miss Nicole Sandells for the fourth defendant, and I am grateful for those submissions.  
10.	First, a general observation which may help to explain my approach in reaching my decision on each request for specific disclosure.  My overall conclusion is that the application complies with the requirements of CPR 31.12 but that is without my necessarily saying that I will order specific disclosure in relation to each request that remains live on this application.  
11.	It seems to me that the posture of both the fourth defendant and its solicitor, Robin Simon, in the correspondence and in their witness statements has been defensive, and it has tended to increase the anxiety of the claimant and his team rather than to reassure them.  I am also concerned that Mr Mockler may have conducted his disclosure under an unduly restrictive conception of what is encompassed by standard disclosure and that there is some force in the concern raised by Mr Weatherill on behalf of the claimant that Mr Chaplin of Robin Simon may not have had a firm grip on the disclosure exercise.  The requests for specific disclosure made by the claimant appear on the whole reasonable to me and appropriate in light of the issues raised by the amended particulars of claim.  However, I do have to consider proportionality and costs, and there is an element of a balancing exercise here which I must undertake, guided by the overriding objective.  
12.	I should say that I have noted the context of this evidence, which is significant and persuasive evidence of defects in the disclosure of the first, second and third defendants and in particular the first and second defendants.  It is against that background that the claimant is naturally turning to the fourth defendant, which is a professional firm.  In relation to the poor disclosure of the first and second defendants, in particular, my attention was drawn to the witness statement dated 11th November 2013 of Mr Jason Baker, the joint administrator of London Tombs Ltd and London Bridge Experience Ltd.
13.	I do not question Mr Mockler’s honesty but I am surprised by some of his responses in his witness statement of 11th October 2013, although I did take into account that he was under time pressure to produce that.  I am surprised at the relative paucity of his record keeping regarding correspondence and attendance notes, given that his is a professional firm.  In light of this, it is not at all surprising to me that the claimant’s legal advisor should have had some concern that they were not obtaining from the fourth defendant all that there was to obtain within the scope of standard disclosure.  
14.	Disclosure to date by the fourth defendant does appear to have been somewhat haphazard and disorganised, at least in parts, and this strongly suggests, along with other statements by Mr Paul Chaplin of Robin Simon in correspondence to which Mr Weatherill has drawn my attention (for example, Mr Chaplin’s response of September 2013 to the letter from Neumans dated 16th August 2013 and in the witness statements of Mr Chaplin dealing with the specific disclosure application), that Robin Simon had not taken the active role in managing the disclosure requirement that they are required to take under the Civil Procedure Rules and relevant case law.  
15.	Therefore, there do seem to be, in my judgment, serious gaps in the disclosure, and it seems to be the case that the fourth defendant and Robin Simon have taken an unduly restrictive view of what standard disclosure entails in this case, given the issues raised by the amended particulars of claim and the other statements of case.
16.	The claimant has been at pains to say that no question has been raised as to Mr Chaplin’s honesty and there is no suggestion that he failed to give proper advice to Evans Mockler Ltd or to Mr Mockler, and I have no reason to think otherwise.  However, it does seem from his own evidence and also upon a review of the schedule to Stephen Bane’s fifth witness statement that essentially Robin Simon left it to Mr Mockler to determine proportionality and relevance against the test of standard disclosure and to undertake the necessary searches without detailed guidance and advice at the time he was conducting the searches, albeit that Robin Simon did identify some gaps in the fourth defendant’s original search and did ask for additional documents to be provided.  There was apparently a degree of supervision and no question has been raised about the quality of the advice that has been given by Robin Simon to Mr Mockler, but a question has been raised, perhaps, about Mr Mockler’s interpretation of the advice he received and the degree to which Robin Simon monitored the implementation by Mr Mockler of that advice.  
17.	I note that in relation to the 58 items in the schedule to the application notice, only 41 remained live as of the start of play this morning.  In relation to the other items in the schedule, which did not remain live, the claimant had expressed concerns when the schedule was first prepared for the October CMC, but in various cases has since agreed that it does not need to pursue those items.  That deals with the 17 items that were not live as of this morning.  
18.	I am satisfied that there are gaps in the disclosure by the fourth defendant which should be addressed by orders for specific disclosure.  I propose to proceed as follows in giving this ruling.  I will work through each outstanding item in the schedule to the application notice relating to the fourth defendant and give my ruling on each one by reference to the number given to that item in that schedule.
19.	I may give some specific reasons for allowing or denying a particular request as we go through, but, as a general rule, if I have allowed the request it means that I consider that the request is reasonable, proportionate and well‑founded in the evidence and that the claimant is entitled to have further efforts made by the fourth defendant to disclose the documents or to have a proper statement detailing the efforts that have already been made set out in a disclosure statement by Mr Mockler or his solicitor, as appropriate.
20.	In cases where I do not allow a request, I am not suggesting that the request is necessarily unreasonable or unfounded, much less a “fishing exercise” or an act of oppression.  However, I am concerned in relation to those requests that it would not be proportionate to order specific disclosure in light of all the circumstances, particularly given where we are in the timetable ahead of the trial.  
21.	If I understand correctly, Mr Weatherill has already conceded on behalf of the claimant that the requests in items 55 to 58 of the list are too broad in the circumstances.  Whether or not he has made that concession, that is my view, and I will be making no order for specific disclosure in relation to those matters.  In relation to many of the remaining live requests, it appears that the position of the fourth defendant is that searches have been made and nothing has been revealed.  However, the claimant is entitled to formal assurance of this in the form of a sufficiently detailed disclosure statement from Mr Mockler or his solicitor, as appropriate, setting out the searches that were undertaken.  
22.	Therefore, in relation to the 37 live requests, having already dealt with items 55 to 58, my rulings are as follows.   In relation to item one in the schedule, that request is denied.  In relation to item three, that is allowed.  In relation to item four, that is allowed.  In relation to item five, that is allowed.  In relation to six, that is allowed.  Eight, that is allowed.  Nine, that is allowed.  10, that is allowed.  12, allowed.  13, allowed.  14, allowed.  15, not allowed because it is dealt with in the December witness statements.  16 is allowed.  17 is not allowed because I consider it has been dealt with.  18 is allowed.  19 is not allowed.  20 is allowed.  21 is allowed.  22 is allowed.  25 is not allowed, that has been dealt with in the December witness statements.  28 is not allowed.  29 is allowed.  This is one I am restricting the scope of, namely, that specific disclosure is required only in relation to documents relating to the loan made allegedly by Temple Court Ltd but not as to the rest of 29.
MISS SANDELLS:  My Lord, can I check that [inaudible] three?  Effectively maybe we could follow that it’s 29 [inaudible] that? 
THE DEPUTY JUDGE:  Yes, and three [inaudible].  
30 is allowed, but I understand that Mr Mockler has undertaken to have a look, in any event, but it might as well be reflected in the order.  34 is allowed, again Mr Mockler has undertaken to confirm the position.  39 is allowed.  41 is allowed.  42 is allowed.  43 is not allowed.  44 is not allowed.  45 is not allowed, I take the view that has been dealt with in the December witness statement.  47 is not allowed.  48 is allowed.  50, the gap in the correspondence.  I take the view that, although there is a gap and accept that to a certain extent Evans Mockler Ltd may still have been acting, I was satisfied with the explanation for the gap and so I am not allowing that at this stage.  51 is not allowed.  52 is not allowed.  53 is allowed.  54 is not allowed and I dealt with 55 to 58.  
MR WEATHERILL:  Sorry, could you repeat what you said about 54, please?  
THE DEPUTY JUDGE:  Yes, 54 is not allowed.  
MR WEATHERILL:  Not allowed.  
THE DEPUTY JUDGE:  No, I take the view that Mr Mockler has dealt with that and Mr Chaplin has dealt with that in the December witness statements.  
MR WEATHERILL:  I’m much obliged.  That brings us to the costs of the exercise.  
THE DEPUTY JUDGE:  Yes.  
MR WEATHERILL:  But also, more importantly perhaps timetabling.  Timetable for provision of this material.  Plainly on that, the other side have been on notice of the requirements for some time now, since before the October CMC.  
THE DEPUTY JUDGE:  Yes.  
MR WEATHERILL:  I can well understand that there’s been a sort of moving tableau to some extent, in respect of this.  But there shouldn’t need be 28 days that I think was provided for in the order.  The draft order that was originally sought, you’re going to find in tab 12 of bundle one, at page three, going over to page four.  Where you’ll see that originally-  
THE DEPUTY JUDGE:  Yes.  
MR WEATHERILL:  Originally 28 days were suggested for that.  That time, in my submissions, has simply got to be cut short in the light of all the circumstances and of the time that has gone by.  28 days was reasonable then, it’s not reasonable now.  I’ll let my learned friend say how long she thinks she needs but we’re on the 9th today.  The last day of term is the 23rd, it can’t be beyond that otherwise we’re into the new year.  So I lay that down as a marker in respect of that.  As far as costs are concerned, you’ve resolved this application which has been fully contested, very substantially in my client’s favour.  You have not allowed certain requests but your reason for not allowing those requests was that you regard them as having been dealt with satisfactorily by subsequently filed evidence.  That’s to say today, the evidence today, which dealt with half a dozen or so, I haven’t counted them up, of those that were refused.  There were very few that were in issue that were refused outright.  We have more than just substantially won this application, I ask for the costs of, and associated with, this application to be paid by the fourth defendant to the claimant.  
THE DEPUTY JUDGE:  Yes.  
MR WEATHERILL:  Perhaps you can deal with time.  
MISS SANDELLS:  My Lord, with regard to time, because you went through very quickly, I need to look at exactly what we’re dealing with to know how long we need.  
THE DEPUTY JUDGE:  Yes.  
MISS SANDELLS:  Equally, I need to look at exactly what you’ve ordered and what you haven’t ordered to look at in terms of the costs.  My learned friend says, `Well, you’ve substantially found in his favour,’ well there were three enormous great requests at the very end.  In fact four enormous great requests at the very end which were not conceded until I sat down this afternoon and which even my learned friend conceded were far too wide for the test.  So that’s just the starting point and we have to look at the rest of what’s been allowed and disallowed to say whether this is a score draw, or not.  We submit that the appropriate result, even if they are successful in this application is to say this should be a costs reserved case because until the witness statement is done you don’t know whether there is anything else.  You don’t know whether it’s simply going to be repeating what was said in March and that there isn’t anything else.  Mr Weatherill’s own position is that a lot of these things are simply wanting a witness statement that confirms the search has been done.  They’ve already had that to an extent.  Until the trial judge looks at this and sees what’s there, you’re not in a position to actually decide how much of this is relevant, not relevant, should have been ordered, shouldn’t have been ordered, helped, didn’t help.  This is a prime case for costs reserved.  If we’re not going to reserve the costs, if we are going to have a contested argument on costs, I need time to look at this to make proper submissions as to what our position is on costs because I don’t accept Mr Weatherill’s submission that this is a significant win for him, that the defendant should roll over and pay the costs.  If you’re not with me on reserved costs, I will need a few moments.  
THE DEPUTY JUDGE:  I am going to reserve the costs for the trial judge.  
MR WEATHERILL:  Could I make submissions about that?  
THE DEPUTY JUDGE:  Yes, certainly.
MR WEATHERILL:  You’ve heard this application, you’ve exercised your discretion in respect of this application.  You’re the only one who can really make a costs order in respect of this.  If this is left over for the trial judge, it will be swept up in a matter of moments at the end of trial, as one of a number of additional matters to be considered.  He will have to take his decision on the most general of considerations, without necessarily having to weigh the relevant importance of this application to the matter as a whole.  And he will be in a far worse position than you to exercise a proper discretion.  So, point number one is that really it’s for you to exercise your discretion.  I appreciate that that may not be attractive as a course.  If it’s not attractive, at the very least, this should be claimant’s costs in the case.  If my learned friend wants time to make submissions on costs then she should have a few minutes for that, I’ve no objection to that, plainly, but I do press you to exercise the discretion which is primarily your discretion.  
THE DEPUTY JUDGE:  I feel there is some force in the submission that these costs need to be seen in the context-  I appreciate this also makes my life easier if I reserve them but that was not my primary consideration.  Therefore you are-  
MR WEATHERILL:  I’d like the costs of today.  I think I’ve earned the costs of today.  We have won this application.  It’s not a question of finely balancing one thing or another, what we’ve been seeking is a level of reassurance.  
THE DEPUTY JUDGE:  Yes.
MR WEATHERILL:  It’s not going to be determined by the outcome of any witness evidence. We’re either going to be reassured, or not, by the process and that’s a huge point of principle-
THE DEPUTY JUDGE:  Right.
MR WEATHERILL:  -on which I have won.  And I have won on the majority of the individual points, so you don’t weigh what is on one side or the other, you ask who the overall victor-  
THE DEPUTY JUDGE:  Well in a sense though each request for specific disclosure is effectively 
a little application-  
MR WEATHERILL:  Yes.  
THE DEPUTY JUDGE:  -and you won some and you lost some and I appreciate that you have won the majority.  
MR WEATHERILL:  Okay, then I can be even more sophisticated if you would like me to be on that and remind you that you have a power to make a proportionate order-  
THE DEPUTY JUDGE:  Yes.  
MR WEATHERILL:  -for costs under the relevant rule.  And if that’s attractive to you, I’m politely pressing you, please, to reach a determination on the issue of costs because you’re in the best position to do that.  
THE DEPUTY JUDGE:  Yes, I appreciate that.  
MR WEATHERILL:  But my fall-back position is that these should be costs in the case, so that the primary incidence of those costs is determined at this stage.  
THE DEPUTY JUDGE:  Do you have a costs schedule?  
MISS SANDELLS:  No.  
MR WEATHERILL:  No.  
MISS SANDELLS:  Nobody has one.  
MR WEATHERILL:  Neither side has, they will have to be assessed in the usual way.  
THE DEPUTY JUDGE:  They will have to be assessed, I see.  
MR WEATHERILL:  In the usual way.  
THE DEPUTY JUDGE:  Yes, well-  
MISS SANDELLS:  My Lord, if you’re expecting me to respond on anything more than costs reserved I’m going to need some time because I was not approaching-  
THE DEPUTY JUDGE:  How much time do you need?  
MISS SANDELLS:  I need 20 minutes, I think, because I need to look at this as well.  My Lord, can I, before we look at that, can I ask you to look at number three?  And just, clarify for me exactly what’s coming in under number three.  Because there’s a fair amount covered under that and I want to be clear that you’re asking to me to complete all of this.  Number three asks for the draft accounts for the two years ending 31st January 2006.  Now, My Lord will recollect in the submissions I conceded that that might well now be relevant given the amendments that were made last week.  But that you’ve got underlying documents and you’ve got the date of the email and you’ve got bank statements [inaudible] which we’ve said all along we haven’t got, bank statements for [inaudible], for example.  I can see the relevance of why My Lord would be saying draft accounts because I said that we pretty much conceded but I’m struggling to find also whether My Lord is ordering that we do a massive search to find the date of this email, when there wasn’t any relevance to it to the proceedings.  
THE DEPUTY JUDGE:  Well, are you not taking the view that you do not have these documents?  
MISS SANDELLS:  My Lord, we have the email, but we haven’t got a date for it.  If you’re going to want us to search for it then somebody’s going to have to go back and go through disclosure and search through everything on the servers again in the hope of possibly finding the date on this, when the date on this email doesn’t take us any further.  That does put an enormous burden, just for a date that is only related to accounts which we know are 2006.  Handing over the draft accounts is not a problem.  We say we don’t have the other documents but the email date, in order to answer that, is going to be a really serious request.  
THE DEPUTY JUDGE:  Mr Weatherill, do you want say anything about that?  
MR WEATHERILL:  No, I would like though to clarify something else but perhaps-  No, I don’t have anything else to say on that.  You’ve ordered that it should be provided.  If you want to change your mind it’s not too late if you, if you really feel you need to.  
THE DEPUTY JUDGE:  Well-
MR WEATHERILL:  I’m not encouraging it.  
THE DEPUTY JUDGE:  No, I understand that.  I feel there is some force in your submission, given how close we are to trial so I will exclude the date of email from three.  
MISS SANDELLS:  Thank you, My Lord.  
MR WEATHERILL:  The matter-  I’m just going to put ‘not’ next to that one.  The matter on which I was seeking clarification was in the course of your judgment you said, `Disclosure statement by Mr Mockler or his solicitor, as appropriate.’  That was the expression you used.  The order that we’re seeking and have always sought is in paragraph 3 b)-  
THE DEPUTY JUDGE:  Yes.  
MR WEATHERILL:  -on page four, which is that the solicitor to the fourth defendant provide the disclosure statement.  That’s the assurance that we have been asking for and which, to judge from the general-  
THE DEPUTY JUDGE:  Yes.  
MR WEATHERILL:  -sentiments that you, well judgments that you expressed, you were essentially in agreement-  
THE DEPUTY JUDGE:  Yes.  
MR WEATHERILL:  -with and so I’m asking for an order in terms of 3 a) and 3 b) in respect of the numbers, numbered scheduled items that we can collect together from our notes.  
THE DEPUTY JUDGE:  Sorry, 3 a) and 3 b).  
MR WEATHERILL:  3 a) and 3 b), that’s to say nothing further from Mr Mockler but Mr Chaplin, disclosure statement from the solicitor for the fourth defendant.  That need not be Mr Chaplin, it could be somebody else on behalf of the, of Triton or Robin Simon.  Mr Chaplin has the conduct of the case, we’d rather concentrate on him because he’s a familiar face concerned with it.  
THE DEPUTY JUDGE:  Yes.  
MISS SANDELLS:  My Lord, I think if that’s what they’ve asked for, that’s what My Lord’s going to order.  I don’t see a problem with that in particular.  But the costs issue, I do need time to just have a look through this.  
THE DEPUTY JUDGE:  Okay, then I will rise.  
Court rises.  
Court resumes.
MISS SANDELLS:  My Lord, I do apologise I haven’t been feeling well.  I may not have been as coherent I’d like to be.  My Lord, we don’t accept that this is a substantial win for the claimant.  We say that if you look at what you’ve actually done, it’s no more than a score draw, if that.  At best Mr Weatherill’s request for costs in the case would be an appropriate order if My Lord didn’t reserve the costs.  We say if you look at what’s going on here, there is a request-  Most of these requests turned on, we accept what you say about there being no document but we want a witness statement.  My Lord will recollect the timetable we’ve been dealing with for this.  This is a request that came in in correspondence just before mediation.  There was no application issued until after the mediation.  The witness statement in support didn’t arrive until the Friday when the CMC was due to happen on the following Monday and the witness statement which has been so heavily criticised, the witness statements of Mr Mockler and Mr Scriven, Mr Chaplin were prepared in an enormous rush at that point.  So nit‑picking about what’s in those has got to be seen in the context.  It might be that My Lord now thinks that, with calm minds and more time, a further statement is required to set it right but that’s something that could have been dealt with had this all been dealt with a little bit more quickly.  Instead of it having hung around since May and nothing happening until the end of September and then it all happening on top of an enormous number of amendments, exchange of witness statements, experts’ reports and a large mediation.  It has to be seen in the context.  There have been attempts to assist but it’s simply a request to have the further witness statement.  Mr Bane’s schedule setting out what was accepted and wasn’t accepted didn’t come in until the eve of the hearing before My Lord, last time.  Very, very late in the day, accepting in a lot of cases what had been taken in the earlier statement but just asking for a further witness statement. And in fact then all My Lord has ordered is that there be a further witness statement, confirming that there are no documents and that searches have been done.  It’s not about asking for further documents.  In fact the big requests for further documents have largely been refused.  So if we look at the various requests for documents, we can ignore number one, which was a fairly silly, small request.  Looking at number two, accepted.  
THE DEPUTY JUDGE:  You mean number three?  
MISS SANDELLS:  You go on to three, draft accounts.  
THE DEPUTY JUDGE:  Sorry.
MISS SANDELLS:  Now, the draft accounts didn’t become an issue in fact until we’d got the amendments to pleadings and they were conceded the other day on the basis that because of the amended pleadings.  And the fact of the amended pleadings has to be factored into a lot of this because a lot of what was requested didn’t come in until you had made an order amending the pleadings.  Four’s been allowed, but it’s a, `Please confirm there’s no clean copy of one single page,’ it’s a small issue.  Five’s been allowed, but again it didn’t warrant a witness statement.  Not that we expect to narrow any documents.  Six has been allowed.  I need to ask My Lord now whether you are ordering not simply that we deal with the issue about instructions and notes but whether you’re also ordering the fourth defendant to go and search for a copy of this £10 cheque from 2006 because that’s going to make an effect on the timetable.  I can see My Lord’s point about dealing with the first part of it, but currently, My Lord, has also ordered us to provide s copy of a cheque for £10 written in November 2006.  
THE DEPUTY JUDGE:  Is that so difficult?  
MISS SANDELLS:  We’ve got to go to the bank, we’ve got to try and get it, it’s more than six years ago.  The possibility of them having it seems very slim.  That’s all more of a distraction of time for something that wasn’t really adequately explained and this is the point that I concentrated on with the submissions.  It’s going to affect the timetable, it’s going to affect whether or not we can provide the statement for the time that Mr Weatherill wanted it.  But if My Lord is insisting on the £10 cheque, then we say that that in itself suggests that it’s not proportionate now to be ordering the fourth defendant to pay the costs until you can see whether there is anything in the very wide request to provide this and various other cheques, just on the basis they might show a family business agreement.  That’s something My Lord can’t assess at this point, that’s something the trial judge can then look at when he sees, when he’s looked at these cheques at trial and seen how much of an impact they have on the pleadings and how much effect they have on the issues that are put. We go to number eight.  It’s purely a confirmatory witness statement point.  They accept that they don’t have them, they want a confirmatory witness statement.  The same goes for number nine and My Lord will recollect that when it came to number nine, Mr Weatherill himself said that it may not have been an issue before the amendments.  So that’s something that couldn’t even be looked at until the amendment had been sorted out and there’s hardly been a great deal of time to deal with the continuing duty to exercise the disclosure post the amendment.  So there can hardly be any serious criticism for something that wasn’t in until the amendment.  
MR WEATHERILL:  This isn’t an opportunity for my learned friend to negotiate with you, or just to reprise-
MISS SANDELLS:  This is not a negotiation, this a question about what-  How does-  Mr Weatherill’s submissions were that this could have been dealt with beforehand and that they needed the pamphlet because of the way Evans Mockler and Robin Simon have dealt with all of this.  In that case it’s important to look at the context, not merely of the “score draw” of who got what and who didn’t but the context in circumstances in which they haven’t had the answers that My Lord has ordered them to now have.  This was not in issue until the pleadings were amended.  You get to 10, it’s a statement, witness statement point again, it’s not a document.  We get to 12 and that’s documents in relation to the annual returns.  That is a request for documents but it’s already been confirmed they don’t exist, there’s going to be a witness statement point again.  We look at 13, 13 is a witness statement point again.  We look at 14, 14 is a witness statement point again.  Now, My Lord, if you look at 15, 15 which hasn’t been allowed is the big, broad request for the further search and for manuscript notes in relation to all relevant matters.  That’s a big request and that’s been denied.  
THE DEPUTY JUDGE:  Well I dealt with it largely on the basis that it was dealt with in the December witness statement.  
MISS SANDELLS:  Mm-hm.  
MR WEATHERILL:  Yes.  
MISS SANDELLS:  What was stated in the witness evidence was, `Here’s a transcript of a particular copy and we confirm as we have confirmed before on many an occasion, there are no more.’  It was confirmed back in March as well.  The statement didn’t take it any further, this witness statement simply says, `Here is a transcript of this document.’  The big request is this request for further searches for manuscript notes.
THE DEPUTY JUDGE:  Is it- 
MISS SANDELLS:  Then we have 16, which is again a witness statement point, with the exception of the search for a copy of a cheque for £10, again.  17 has been denied.  Now this is documentation and notes in respect of a proposed share transfer to London Tombs Ltd, it’s a fairly big request again and it’s gone.  Whereas 18, by comparison, is a request for one outgoing email, where they’ve already been told it doesn’t exist and all My Lord has therefore ordered is a witness statement confirming it doesn’t exist.  19 hasn’t been allowed.  Now, I know My Lord said it was because it was dealt with in the witness statement.  My Lord will recollect it was dealt with in the witness statement back in October and indeed it was dealt with earlier than that, in March and April, as well.  So that is not a December witness statement point, that’s an October witness statement point and it wasn’t conceded.  20 is the correspondence with PJ Murray which has been offered in the witness statement anyway and again the timing of that has been as soon as Mr Mockler has an opportunity to look at it.  21 is a follow-on from 20.  22 deals with attachments that haven’t been disclosed and it’s already outed, it’s a witness statement point again, not a document point.  23 and 24 are both requests that were pursued right up until the eve of the hearing, Mr Bane’s witness statement accepted the position on 25th November.  There were fairly big requests sitting there.  25 is the one that My Lord will recall Mr Weatherill was going to concede and then changed his mind and decided to pursue and it you, My Lord, have disallowed it.  26 and 27 are again points where it was accepted in the witness evidence, when we got the chance to do it.  28 hasn’t been allowed.  Now, 28 is the really big, a big, big request.  28 is, `To provide documents listed in the email, bank statements for all bank accounts, loan statements for all loan accounts, purchasing invoices for the quarter, credit card statements, wage details, quick[?] books, back up files.  Any other information that you think will assist with the preparation of the London Bridge Experience quarter in 2009.’  That’s not one document, or one email, that’s a huge exercise that was being asked for and which you’ve denied to them.  So when one is balancing 20 allowances of one document, one email, to be covered in a witness statement it has to be balanced against this, as to the six different requests within one thing and dozens and dozens of documents from each of those six.  29 was only allowed number three in relation to Templecourt, not the rest of it and again it’s a witness statement point.  30, we offered to look at in any event having had an opportunity to review it.  31, 32 and 33 were accepted on the basis of the evidence that was provided in October.  They weren’t accepted until 25th November.  34 is another offer in any event, again, as soon as the opportunity arose.  35 and 36 were again ones that were accepted on 25th November, having been dealt with in witness statements back in October, as soon as they, effectively as soon as they were asked, same for 37, same for 38.  39 is details of the proposed share transfer, again it’s a simple one document.  `Explain what this request related to and file further documents dealing with the instructions,’ and they know we’ve already said there are no documents, so it’s going to be a witness statement point.  40 was accepted on 25th November and 41 was accepted on 25th November, again a month after the witness statement.  42 is another witness statement point in relation to Mr Potts of Duncan Phelps[?].  43 hasn’t been allowed and neither has 44 nor 45.  And this is `Undertake a search for earlier emails, is this the only correspondence relating to the facility agreement?  Search for other documents relating to this amendment.  Why these documents indicate-  Indicate documents indicating why the amendment was sought and minutes of meetings, telephone conversations for the period.  Undertake a search for all these documents and provide copies.’  This is all about [inaudible] it’s a much, much wider request again.  43, 44 and 45 go much broader than, `Give us one document or check for this email, or look for that attachment,’ and they’ve all been denied.  46 was accepted after the witness statement but only on 25th November.  47 has been disallowed again, which is, `Provide a copy of the information requested in this email along with the email chain relating to this matter and the initial instructions and responses.’  Again, that’s a much bigger request than one document here, or one email there.  48, admittedly, has been allowed but again that’s on the basis that My Lord has seen that there is already a statement saying there is no file for the Builders Café so it’s purely a witness statement point.  49 was accepted on the 25th.  Number 50, My Lord, will see number 50 is the significant gap point.  This is supposedly a large request on the basis that there is a significant gap but My Lord’s refused the application, for very clear reasons and which should have been apparent and obvious long before we came back before My Lord and which should have been conceded and wasn’t.  Then we get to 51, 51 seeking a search to be undertaken in respect of London Bridge Properties and the Mug House, that was dropped on the 25th again.  52 has not been allowed.  51 wasn’t allowed, 52 hasn’t been allowed, 52 is another big request.  `A thorough search of documents relating to the Jersey registered South Central Holdings Company.  Disclosure statement to demonstrate proper search has been undertaken in respect of this company,’ that again is not one document here, or one bit there, that’s a thorough search in respect of all documents in relation to that company.  That’s another of the biggies, that’s another of the big, broad requests.  53 is the box office and again that’s been dealt with and it’s been said that there isn’t any, it’s a pure witness statement point.  And 54, 55, 56, 57 and 58 have all gone and those are the big ones.  54 is time sourcing correspondence, 55 is all the telephone records.  That was a huge request.  56 is all Glenfields’ documents, when we get all the [inaudible] documents all those, those are the huge requests.  They weren’t conceded until after I sat down.  That’s not, `Give us a clean copy of this, provide us with a copy of that-‘  
MR WEATHERILL:  They weren’t conceded at all.  They were, I merely said I could see your point that they were wide.  
MISS SANDELLS:  Well in that case Mr Weatherill’s fought them and lost them.  But those are big requests to lose when you are balancing this up.  One can’t say you know, they won 20 requests and we only won 10.  When you break it down, it’s a very big difference from that.  This is a case where they’re saying they wanted comfort and they want the witness statement.  If they’d asked for a comforting witness statement a good deal earlier, then they might well have got it in a calmer atmosphere, when it was able to be responded to properly and we could have picked up this and dealt with it.  What we got was a very last minute request.  It’s been dealt with by Evans Mockler as well as they can, My Lord has seen those answers and this is about giving them comfort.  In terms of the big searches for further documentation, those have been refused for very good reasons.  This is not a case, therefore, where Mr Weatherill can say, `Costs follow the event and I’ve won the majority of this and therefore the costs go with us.’  This is either a cost reserved case, or it’s a costs in the case.  We say it’s better to be costs reserved because at this point in time nobody can tell how relevant or important any of this.  The chances are it’s completely irrelevant even if they succeed at trial.  But we are content with costs in the case.  My Lord, unless I can assist you any further on the costs issue, there are, do remain other issues but on the costs subject to checking I haven’t missed anything.  Apparently I’m still making some sense, thank you, My Lord.  
MR WEATHERILL:  Well, My Lord, I’m even more adamantly asking for costs of this application.  To say it’s a ‘just’ a reassurance point, ‘just’ a witness statement point, begs a question, they’re to carry out the search that Your Lordship has ordered and Mr Chaplin is to, or someone from the defence, is to provide a witness statement.  That’s all we’ve asked for, that’s what you’ve ordered in the vast majority of the cases.  You don’t belittle that simply by saying, `It’s just a witness statement point.’  We’ve won this application.  The winner is on all usual principles entitled to the spoils under the CPR.  I’ll turn up the rule, 43.2, I think it is, or it might be 44.3.  General rule about costs, CPR 44-  Sorry, I seem to-  My thick finger’s going through the thin paper.  It’s 44.3.  The Court has a discretion as to whether costs are payable-  Sorry, page 1310.  
THE DEPUTY JUDGE:  Yes, I’ve got the page.
MR WEATHERILL:  You’re quicker than me at getting there.  Whether as to, whether costs are payable to one party or the other order it might go to costs and when they’re to be paid.  `If the Court decides to make an order about costs, the general rule is the unsuccessful party will be ordered to pay the costs of the successful party but the Court may make another order.’  We’re the clear winners.  There are notes about who’s the winner.  I don’t, we don’t invite you to weigh them in that way but the general outcome of this application is entirely plain from the opening remarks that you made and the subsequent orders that you made.  That they were relieved as a matter of discretion, no doubt based, as you said, where you disallowed matters it was because you took the view on proportionality and the like that they ought to be disallowed.  They’re not relieved of the consequences of our victory in this application by that act of mercy on your part.  We should have the costs of this application.  And if I may just presage, all that my learned friend has said about the little amount of obligation placed by your order as just a witness statement point, that suggests to me that they can jolly well provide this disclosure before the 23rd.  In fact, the timetable which was provided for, following your last order, provides for quite a lot of events to take place by the 23rd.  In fact if it’s so straightforward for my learned friend, she can jolly well provide her witness statement within seven working days.  But I don’t suppose for a moment that Mr Chaplin would agree to that because he’s got to reassure himself that he can sign the witness, sign that statement. It seems to that Friday 20th December would be an appropriate date.  And the reason I say that is that it doesn’t allow very much time and it may not allow enough time but the parties are required to file their supplemental witness statements of matters made necessary by amendments to the pleadings and for further disclosure by the 23rd.  There’s a liberty to apply.  The parties may not quite have time to subsume this further disclosure over that weekend but they should have the opportunity to attempt to do that over the weekend and an application can be made for a limited extension of time thereafter, if it was really required.  Just practical politics and reason.  Unless I can assist you further?  
THE DEPUTY JUDGE:  No, thank you.  
MISS SANDELLS:  Not in terms of the costs but I do want to address My Lord on the issue of time re as and when. 
THE DEPUTY JUDGE:  Okay.  
I take the view that this application came about because of poor disclosure by the fourth defendant and lack of proper control by the solicitors for the fourth defendant.  I have disallowed a number of specific requests as was accurately characterised on the basis of proportionality, cost, expense, the overriding objective and where we are in relation to the trial.  However, I think it is fair to say that the claimant is the winner of this application, although it was thoroughly contested and in relation to certain items the fourth defendant, the counsel on behalf of the fourth defendant made some good points.  
However, this was not an exercise of oppression, in my view, or a fishing exercise.  The claimant has the right to be reassured properly and I believe that the order that I have made today is the best order I can make in these circumstances.  As I say, taking into account the overriding objective, proportionality and so on.  Therefore, it seems to me that taking all of those into account splitting things slightly I order two-thirds of the claimant’s costs in this application to be subject to a detailed assessment.  
MR WEATHERILL:  And paid by the fourth defendant?  
THE DEPUTY JUDGE:  And paid by the fourth defendant, yes.  
MR WEATHERILL:  That just leaves timing, I think.  I can draft the order.  
THE DEPUTY JUDGE:  Yes.  
MR WEATHERILL:  But I don’t know what the timing is.  
MISS SANDELLS:  My Lord, there’s two points in fact, it’s not simply answering Mr Weatherill on timing.  I’m going to ask My Lord for permission to appeal because I’ve no idea whether we’re going to use it or not but if I don’t ask you and you don’t refuse me and I do decide I want to do something about it I have to come back in front of you again.  So, I’m asking for permission to appeal.  
THE DEPUTY JUDGE:  Permission is refused.
MISS SANDELLS:  The second point is timing.  It’s all very well for Mr Weatherill to say that, ‘It’s all very easy to deal with this and it’s all straightforward to get somebody to do it.’  My Lord will recollect that there’s a lot to be done between now and 23rd December.  We are still waiting for the claimant’s second forensic report, which is late.  We have to get our own forensic expert’s report in on the 23rd, dealing with both quantum and conduct.  The conduct report was late.  We are supposed to be dealing with supplemental witness statements, we are supposed to be dealing with amended defences.  We’re getting amended replies in on the 23rd.  An awful lot has to be done by the 23rd.  It is correct that a lot of this witness statement is going to be providing comfort, to say, `Yes, these are the searches that have been carried out and this is what has been done,’ but it’s going to take time to put that statement together.  And it needs to be put together appropriately, calmly and with time because we’ve seen what’s happened when things get rushed and they try and respond to things quickly and without having proper time for it.  In the circumstances, we would say that it’s appropriate for this to be 6th January, which gives everybody time to deal with all of the other important things that need to be done to keep the trial date, otherwise the trial date’s at serious risk.  And we need that time in order to get all of the other things done and to deal with the proper requests, not least because as My Lord has ordered there are things like cheques to try and be obtained.  There will have to be letters to banks, all that this witness statement is likely to say if you order it any quicker than that is us to say, `Well, we’ve asked the bank and there’s no response yet,’ which will then require a further witness statement later on saying, `Now, the bank’s response is...’  If we do it to 6th January then all the documentation that there is will all be available in plenty of time and the statement will be clearly done and properly done with time to deal with it adequately and not leaving any of the kind of gaps in it that has caused Mr Weatherill to criticise the fourth defendant so far.  There was no intention to suggest that this is a slam dunk, crossing Ts, dotting Is, easy exercise in doing this witness statement.  It is doing the witness statement that is going to take up time and be very difficult, in terms of making sure that we provide the kind of detail that the claimant is going to be satisfied with and doesn’t result in a further application and returning to Court.  It’s got to be done properly.  Just because there are no documents doesn’t mean that the witness statement is an easy exercise.  We’ll need time to do it properly and we would say 6th January allows everybody to deal with the timetable properly and is the least likely to put the trial at risk.  I’m desperately trying to avoid having to make an application to vacate.  
MR WEATHERILL:  I’m sorry but 6th January is just too late.  Skeleton arguments have to be in by the 9th.  The experts will still be meeting there, 23rd is longer than should be required for this exercise.  My primary position is the 20th.  If you’re not with me for the 20th, it should be in before Christmas, so that matters can be dealt with.  If you’re not willing to order before Christmas, then some work will have to be done over the period between Christmas, not going to be popular, but Friday 27th would be an appropriate date.  6th January may be only a week before the trial begins.  Skeleton arguments have to be in by the 9th.  I won’t sit down and do a skeleton argument not knowing what further evidence might come out until after it’s taken shape, it’s just not fair all round.  So, it’s in your discretion to order it but sooner rather than later, please.  
THE DEPUTY JUDGE:  I am going to order it to be delivered by 23rd December.  
MR WEATHERILL:  I’m very much obliged.  Thank you very much.  
MISS SANDELLS:  Thank you, Sir.  
MR WEATHERILL:  We’ll put a liberty to apply in the order.  
THE DEPUTY JUDGE:  Yes.
MR WEATHERILL:  Do you want to reserve any applications for, under the liberty to yourself? Since you are seized of the matter?  
THE DEPUTY JUDGE:  I am happy to consider them if you think that is best given-.  
MR WEATHERILL:  It was a cheeky suggestion-
MISS SANDELLS:  I suspect-
MR WEATHERILL:  -but one made with some seriousness, in that another judge getting this in a busy applications list is not going to know the history-  
THE DEPUTY JUDGE:  Yes-  
MR WEATHERILL:  -that you’ve got.  
THE DEPUTY JUDGE:  Yes, as I say, I am willing to hear any further application in relation to this.  
MR WEATHERILL:  I’ll put a form of words in to the effect that any application for, under the liberty to apply to be made, if possible, to yourself.   
THE DEPUTY JUDGE:  Yes.  
End of Judgment.
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