“Verbal brawl” shows why disclosure pilot is needed

Property dispute: Increasing hostility

A Chancery master has criticised the “verbal brawl” into which a landlord and tenant dispute has descended and said the conduct of the case showed why the disclosure pilot was necessary.

Master Shuman said she had heard two full days of submissions on disclosure alone in Canary Riverside Estate Management Ltd v Circus Apartments Ltd [2019] EWHC 154 (Ch).

She said: “This case provides a good example of why the disclosure pilot was necessary…

“Cases must be dealt with justly and at proportionate cost. I question that the overriding objective is being adhered to by the parties given how much of the court’s resources have already been allocated to this case and the costs of this exercise to the parties.

“There is a need for the parties to focus on what is required in a case, it requires both cooperation between the professionals and for the parties to assist the court.”

She went on in her ruling to note that the litigation was being conducted by the solicitors – Trowers & Hamlin for the claimant and Norton Rose Fulbright for the defendant – with “increasing hostility”.

Master Shuman continued: “It is becoming a verbal brawl and the parties should not lose sight of their duty under CPR 1.3, which requires them to help the court to further the overriding objective.

“Part of the court’s duty to actively manage cases includes at CPR 1.4(a) encouraging the parties to co-operate with each other in the conduct of the proceedings.”

She illustrated the problem with an issue that arose about the adequacy of the defendant’s approach to disclosure, with the claimant accusing the defendant, Norton Rose Fulbright and partner David Stevens of failing to comply with disclosure obligations and refusing to believe evidence set out in Mr Stevens’ witness statements.

The master said: “I do not accept that the manner in which the defendant approached its disclosure obligations in respect of [a specific issue] has tainted and fundamentally infects the disclosure exercise that has been carried out.”

The outcome of the hearing was that the master made an order for specific disclosure largely in the terms sought by the defendant.

Meanwhile, according to a report last month on Lawtel, the High Court decided that it has jurisdiction under the disclosure pilot scheme, which reserved the court’s general case management powers, to make an order for specific disclosure which would previously have been made under rule 31.12.

It said Edwin Johnson QC, sitting as a deputy High Court judge in White Winston Select Asset Funds & Anor v Mahon & Anor, faced the question of whether the court had jurisdiction to make an order for specific disclosure under the rule, as that provision had been replaced by the pilot scheme.

The Lawtel report said: “It was not clear which part of the pilot scheme gave the court jurisdiction to make an order for specific disclosure under what would have been rule 31.12, but the court agreed with the claimants that, as a matter of general case management powers, it had the ability to make an equivalent order that would previously have been made under rule 31.12 to ensure that a party complied with his disclosure obligations.”

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