The claimant (MWP) applied for an order under paragraph 21 of PD51U for certain of the defendants to produce, amongst other things, engagement letters, retainers, invoices, and conditional fee agreements which MWP contended had been mentioned in two witness statements (and the documents exhibited to those witness statements) filed in support of an application to strike out the proceedings. The judge described MWP's PD51U application as involving the creation "of a schedule of documents expressed in extravagant terms, and seeks disclosure of those documents which it is submitted are bound to exist, and in reality have been appropriately alluded to in the witness statements concerned".
By way of background, in the proceedings MWP alleges that the first six named defendants dishonestly conspired to make claims for costs orders in certain other proceedings between MWP and the first defendant (Mr Emmott), knowing that the second to sixth defendants were not entitled to payment in respect of the legal services they had provided to Mr Emmott (and therefore no entitlement to an indemnity or to the cost orders arose). Accordingly, MWP sought to recover all sums advanced by way of interim payments on account in respect of the cost orders concerned, as well as a declaration that the defendants were not entitled to recover any costs.
Mr Emmott's former solicitor (the late Mr Robinson) and one of the named defendants who acted as leading counsel to Mr Emmott for significant periods relevant to the dispute (Mr Shepherd QC) each filed witness statements in support of the application to strike out the proceedings.
PD51U sets out a pilot scheme for disclosure in the Business and Property Courts (which applies in lieu of CPR 31, save for certain specifically identified provisions in the Practice Direction).
Under paragraph 21.4 of PD51U, the Court may make an order requiring the production of a document which has not already been provided by way of disclosure but is "mentioned" in a statement of case, witness statement, witness summary, affidavit or expert report if the court is satisfied that such an order is reasonable and proportionate as defined in paragraph 6.4 of PD51U.
Paragraph 6.4 of PD51U provides as follows:
In all cases, an order for Extended Disclosure must be reasonable and proportionate having regard to the overriding objective including the following factors—
(1) the nature and complexity of the issues in the proceedings;
(2) the importance of the case, including any non-monetary relief sought;
(3) the likelihood of documents existing that will have probative value in supporting or undermining a party’s claim or defence;
(4) the number of documents involved;
(5) the ease and expense of searching for and retrieval of any particular document (taking into account any limitations on the information available and on the likely accuracy of any costs estimates);
(6) the financial position of each party; and
(7) the need to ensure the case is dealt with expeditiously, fairly and at a proportionate cost.
Paragraph 21.3 of PD51U says that a document is mentioned "where it is referred to, cited in whole, or in part, or there is a direct allusion to it". Accordingly, while PD51U is a self-contained code, such that "some care needs to be exercised in referring to authorities decided under CPR Part 31", because the definition of "mentioned" in paragraph 21.3 replicates the case law in relation to the meaning of that word in CPR 31.14, the judge was of the view that he could safely have regard to the general principles identified by reference to that phrase. Under CPR 31.14(1) a party may inspect a document "mentioned" in a statement of case, witness statement, witness summary or affidavit.