Burnden Holdings (UK) Ltd v Fielding & Anor [2014] EWHC 3356 (Ch)

Case No 3LV30284[2014] EWHC 3356 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
LIVERPOOL DISTRICT REGISTRY
Venue Manchester Civil Justice Centre
1 Bridge Street West
Venue ManchesterDate 5 th September 2014
M60 9DJ
Before
HIS HONOUR JUDGE HODGE QCsitting as a Judge of the High Court
Between
BURNDEN HOLDINGS (UK) LTDClaimantGARY JOHN FIELDING FirstDefendantSALLY ANNE FIELDING SecondDefendant: BURNDEN HOLDINGS (UK) LTD ClaimantGARY JOHN FIELDING First DefendantSALLY ANNE FIELDING Second Defendant
Transcript provided by:Posib Ltd, Y Gilfach, Ffordd y Pentre, Nercwys, Flintshire, CH7 4ELDX26560 MOLDTel: 01352 757273 Fax: 01352 757252translation@posib.co.uk www.posib.co.uk
APPEARANCES: for Claimant/Respondent: Mr Andrew Latimer for Defendants/Applicants: Mr Mark Cawson QCApproved Transcript of the Judgment
JUDGMENT5 th September 2014HIS HONOUR JUDGE HODGE QC:

End of judgment

[1]This is my extemporary judgment on an interim application in a claim by Burnden Holdings (UK) Ltd (as claimant) against Mr Gary John Fielding and his wife Mrs Sally Anne Fielding (claim number 3LV30284).[2]This litigation has already been the subject of a judgment delivered by the Vice-Chancellor, Mr Justice Norris, sitting in Liverpool on 15th May 2014. Mr Justice Norris dismissed an application by the defendants for security for costs. A transcript of his judgment has been obtained and it bears the neutral citation reference [2014] EWHC 1908 (Ch). Paragraphs 1 to 11 of that judgment summarise the background to, and the history of, the present litigation. I do not propose to burden this judgment, being delivered just before 4 o’clock on the afternoon of Friday 5th September 2014, by repeating those matters.[3]From the perspective of the parties’ legal representatives, this is clearly going to be “fun” litigation, with both parties adopting tactical positions and taking tactical points at every conceivable opportunity. They will also no doubt accuse each other of taking that line.[4]The present application by the defendants was dated 20th August 2014, although the application notice was only sealed on Friday 29th August 2014, and I understand that it was only served on Monday 1st September 2014, giving the minimum three clear days’ notice.[5]The matter has also been complicated by two further events:[6]The first is a change in the identity of the claimant’s solicitors from Hill Dickinson to Gunner Cooke (although that is a change of form rather than substance because the relevant fee earner, Mr Harvey Stringfellow, remains the same).[7]The second complicating factor is that at some stage between the preparation of this application and this hearing, the defendants’ solicitors conducted a search at Companies House which disclosed that the claimant company (which is in liquidation) had been dissolved on 20th August 2014. It was Mr Mark Cawson QC (appearing for the defendants and applicants) who first raised this matter (hitherto not apparently known to the claimant or its solicitors) in his written skeleton argument of 4th September 2014.[8]Mr Cawson pointed out that so long as it was dissolved, the claimant had no standing to continue the present proceedings, although he acknowledged that if the company were to be restored to the register (pursuant to section 1029 of the Companies Act 2006) then intervening acts in the litigation would be retrospectively validated.[9]With some prodding from the Court, the parties have managed to deal with this complication on a pragmatic basis, which has enabled this application to proceed to a full and effective hearing.[10]The liquidator of the claimant company has undertaken to the Court to restore the claimant to the register, a matter about which it is anticipated that there should be no difficulty. I have indicated that I will post-date the making of any order to the date of such restoration, and will extend the losing party’s time for appealing until 21 days after the date the Court’s order takes effect. I am satisfied that I have the power to direct that this order should not take effect until a later date, pursuant to CPR 40.7(1).[11]That will do justice to both parties and will cause no disadvantage to either party.[12]Mr Andrew Latimer (of counsel) had prepared a written skeleton argument opposing this application yesterday, before he knew of the effect of the company’s dissolution. He receives his instructions from the new solicitors retained in place of Hill Dickinson, albeit the actual physical source of his instructions remains the same, namely the liquidator and Mr Stringfellow.[13]There has been one further development since the Vice-Chancellor’s judgment was handed down on 15th May 2014. At that time the parties had agreed that the Fieldings (the defendants) were not required to serve a defence until 4th July 2014. There is presently listed before His Honour Judge Bird (sitting in Liverpool on 18th November 2014) the hearing of an application (issued by the defendants on 2nd May 2014) for summary judgment dismissing the claim on the grounds that it is said to be statute-barred, or seeking the trial of a preliminary issue on that limitation point.[14]Following on from the handing down of the Vice-Chancellor’s decision dismissing the application for security for costs, the parties agreed an order, by consent, dealing with the service of evidence in relation to the summary judgment application and (by paragraph 4) extending the time for service of the defendants’ defence until 4 p.m. on the date 28 days after the determination of the summary judgment application.[15]That order was, as I say, made by the consent of the parties.[16]The application presently before the Court was listed in the applications list. Mr Cawson estimated that it would take an hour; Mr Latimer estimated that it would take an hour and three quarters in court, with 45 minutes for pre-reading. In the event, even excluding the time taken in dealing with the complication caused by the dissolution of the company, the application has taken considerably more time than either counsel had envisaged.[17]Mr Cawson addressed me either side of the luncheon adjournment for about 55 minutes; Mr Latimer responded for the same period of time this afternoon; and Mr Cawson has replied for 20 minutes. It is against that background that I started to deliver judgment just before 4 p.m.[18]The application is one for the disclosure and inspection of documents. It is brought under two separate heads:[19]Schedule one of the application notice seeks orders pursuant to CPR 31.14(1)(b) seeking inspection of documents mentioned in a witness statement of Mr Stephen John Hunt, the liquidator, dated 27th June 2014, prepared for the purposes of resisting the defendants’ summary judgment application.[20]The second limb of the application seeks specific disclosure of three classes of documents identified in schedule two to the application notice, pursuant to the provisions relating to specific disclosure contained within CPR 31.12.[21]This is a case in which (as I have indicated) time for service of any defence has been extended until 28 days after disposal of the summary judgment application. The time for disclosure in accordance with the CPR has therefore not yet expired, and there have been no previous orders for any form of specific or general disclosure.[22]The application for specific disclosure is supported by the third witness statement of Mr Christopher John Mitchell, a solicitor employed by Addleshaw Goddard, the defendants’ solicitors, as a managing associate. His witness statement is dated 20th August 2014 and exhibits various documents as exhibit CJM 3.[23]The application is opposed by a witness statement made by Mr Stringfellow (his second) dated 4th September 2014, together with exhibit HFS 2.[24]I only had the opportunity (as did Mr Cawson) of receiving and reading that witness statement during the course of this hearing.[25]Both parties’ counsel have produced helpful written skeleton arguments dated and produced yesterday, 4th September 2014. I do not propose to reproduce the content of those skeleton arguments in this extemporary judgment. Suffice it to say that I have borne their contents firmly in mind.[26]Mr Cawson began his substantive submissions by identifying what he described as five key points:[27]First, this was a transaction which had been entered into with the benefit of professional advice from solicitors and accountants, and restructuring experts, some seven years ago. Indeed, the first relevant instructions appear to date back to May 2007, although the relevant events took place towards the end of September 2007 and during the course of October 2007.[28]Secondly, Mr Cawson made the point that the pleaded case advanced by the claimant is founded upon documents extracted from the files of Tenons, the predecessors of Baker Tilly, who were acting as advisors for the claimant company. The case is said to be based on inferences to be drawn from documents extracted from Tenons’ files.[29]Thirdly, Mr Cawson emphasised that there had been no operation of a pre-action protocol, or any attempt to engage in a pre-action protocol process. The claim form was issued at the very end (or, the defendants would say, just after the expiry) of the relevant period of limitation; and there was then a delay in serving the claim form until almost the end of the four month period of its validity.[30]Despite all that there was no attempt to engage in any pre-action protocol process, even during the period between the issue and service of the claim form. Had there been such engagement, Mr Cawson submits that there would have been requests for exchanges of documentation. Mr Latimer makes the point that those exchanges would have operated both ways.[31]Fourthly, Mr Cawson draws attention to findings in earlier litigation brought by a company called Ultraframe against the present defendants. Those proceedings resulted in a lengthy trial before Mr Justice Lewison (as he then was), who made observations adverse to Mr and Mrs Fielding’s dealings with documents.[32]That is a point strongly relied upon by Mr Latimer for the claimant company; but despite that, and anticipating Mr Latimer’s observations (foreshadowed by his written skeleton), Mr Cawson emphasises that the defendants and their associates were, nevertheless, awarded 80% of their costs of the Ultraframe litigation.[33]Mr Cawson submitted that the defendants should have a proper opportunity to see relevant documents in order to refresh their memories and to be placed on a level playing field with the claimant company, which has clearly had access to relevant documents for the purposes of formulating the present claim.[34]Fifthly, Mr Cawson emphasised that the defendants have been asking for the generic and specific documentation, identified in schedule two to the application notice, since 3rd June 2014, before the service of Mr Hunt’s witness statement of 27th June 2014; and the defendants’ solicitors have been seeking the various documents referred to in that witness statement since 3rd July 2014. Mr Cawson submitted that the defendants should see the documents referred to in Mr Hunt’s witness statement in order properly to address the summary judgment application, but even more so in order to enable the defendants to prepare what (he submits) will be a detailed defence in response to the existing particulars of claim.[35]Whilst there is an extension of time for service of that document until 28 days after the disposal of the summary judgment application, the defendants’ solicitors want to get on with that work in the meantime.[36]Mr Latimer also made five preliminary points:[37]First, he emphasised that there is no allegation in the supporting evidence from Mr Mitchell that the defendants need any of these documents for the purposes of the summary judgment application; what they need them for is to enable them to draft a defence.[38]Taking up a point mentioned by me, Mr Latimer emphasised that the defence had, by consent, originally been due for service on 4th July 2004, pursuant to a consent order dated 17th March 2014. Yet it was not until 3rd June 2014 (leaving only about a month of the period allowed for preparation and service of that defence) that the first request was made for any of the documents identified even in schedule two of the application notice.[39]In other words, Mr Latimer submits that for a long time the defendants did not appear to recognise that they needed these documents for the service of a defence.[40]There is said to be no explanation for that change of position. Mr Latimer says that the present requests for disclosure of documents should be viewed as a tactical response to the failure, on 15th May 2014, of the defendants’ application for security for costs.[41]Secondly, Mr Latimer submits that the claim itself is what he describes as “brutally simple”. There was a dividend which the claimant says was declared unlawfully, generating substantial profits for the defendants shortly thereafter.[42]The particulars of claim lack the complication usually found in chancery and commercial proceedings; they are said to be remarkably simple and extend to only fourteen pages. Mr Latimer contrasted this with the monumental pleadings found in too much current commercial and chancery litigation.[43]I note that Mr Latimer was the draftsman of the particulars of claim.[44]Thirdly, Mr Latimer points out that the defendants turned down an opportunity offered to them for a stay of the proceedings made shortly after service. That is said to show how deeply disingenuous it is for Mr Cawson now to pray in aid the failure to invoke any pre-action protocol, or to engage therein.[45]Mr Latimer points to paragraphs 8 and 9 of Mr Stringfellow’s witness statement in this regard. He points out that engagement in any pre-action protocol process would have involved the sharing and mutual disclosure of documents. That was something, he says, that the defendants did not want to undertake.[46]Fourthly, Mr Latimer submits that the defendants’ approach is a highly tactical one; they turned down an opportunity for a stay. He makes reference to paragraphs 17, 21 and 22 of the Vice-Chancellor’s judgment. He submits that the defendants do not really need these documents; what they are seeking to do is to create a springboard for an Unless Order in order to stifle the claim, a tactic previously adopted by way of their application for security for costs until that tactic was itself stifled by the Vice-Chancellor’s decision.[47]Mr Latimer emphasises that if successful on this application, the only parties to this litigation who will have a full suite of documents will be the defendants themselves.[48]Fifthly, Mr Latimer invites the Court to bear in mind the nature of the defendants with whom the Court is dealing. They are said to be manipulative, and to have been dishonest, not simply generally but in relation specifically to the conduct of the earlier Ultraframe litigation.[49]In his reply, Mr Cawson submitted that there was no substance in Mr Latimer’s assertion that the defendants were engaged in tactical positioning. If that were the case, they would have served a bland defence and awaited disclosure before producing a full amended defence. He asked why these documents should not be produced now, in accordance with the ‘open hands’ approach to litigation under the Civil Procedure Rules. He submits that the lynch-pin of the case is the dividend that was paid on or about 12th October 2007.[50]I pointed out that the real issue at the heart of the case seems to me to be whether the defendants ever honestly and genuinely believed at that time that the share which was distributed in specie, by way of dividend, was in fact worth the value attributed to it of £10.48 million.[51]Mr Cawson and Mr Latimer did not necessary demur from that analysis. But Mr Cawson said the case had to be put in a wider commercial context, and that the defendants must be entitled to access to that context before being required to plead their defence. He submitted that it would be “litigating in the dark ages” for the defendants to be required to serve a defence blind. He pointed out that there was no suggestion that the defendants had been asked for any particular documents, but had refused to produce them. He emphasised that Mr Fielding, at least, had been examined by the liquidator under his statutory powers. The liquidator has had every chance to ask the defendants for documents, and the liquidator should be required by the Court to reciprocate.[52]Those essentially were the generic submissions.[53]Before I turn to the details of the application it is necessary for me to consider the proper approach to an application for inspection of documents under CPR 31.14. 31.14 is headed “Documents referred to in statements of case etc.”. CPR 31.14(1)(b) provides that a party may inspect a document “mentioned in” a witness statement. Thus the title to the sub-rule is couched in terms of documents “referred to”, whereas the body (and operative part) of the rule refers to documents “mentioned in” (for present purposes) a witness statement.[54]I have been taken by Mr Cawson to the decision of the Court of Appeal in the case of Expandable Ltd v Rubin [2008] EWCA Civ 59, [2008] 1WLR 1099. Mr Cawson took me to that authority because Mr Latimer cited that case as authority for the proposition that CPR 31.14 actually applies to documents “mentioned in” a witness statement (or the other specified documents) rather than documents “referred to” in any of the specified documents. That was said to mean documents specifically mentioned, or to which there was a direct allusion.[55]Mr Cawson submitted that one needed to look at what was specifically said in the Rubin case at paragraphs 23 and 24. He submitted that if one did that, then Mr Latimer’s proposition was not made out. Mr Cawson began by referring me to the words that had been actually used in the witness statement under consideration by the Court of Appeal in Rubin. The relevant witness had used the words:
“He wrote to me …… drawing my attention to discrepancies”
. One issue was whether that was a document which was specifically mentioned in the witness statement. The Court of Appeal held that the expression “He wrote to me” in the witness statement was a direct allusion to the act of making the document itself, and the letter was therefore “mentioned” in the witness statement for the purposes of CPR 31.14.[56]I was taken to paragraphs 23 through to 25 of the judgment of Rix LJ. At paragraph 23 Lord Justice Rix said that he was “…content to assume that there is no effective or substantive difference in the meaning of the previous and the present rule. I am content to adopt the test of direct allusion as an elucidation of the present rule's language which speaks of "mentioned". Nevertheless, the rule is in terms of "mentioned, and any gloss can only be by way of elucidation. I am inclined myself to think that the change in the rule's language from "reference is made" to "mentioned" does underline two matters. The first is to confirm the test of "direct allusion" or, to use another gloss used by Slade LJ, "specifically mention". This is because the expression "refer" or "reference" is ambiguous between a direct or an indirect reference”.[57]The earlier case of Dubai Bank v Galadari (No 2) [1990] 1 WLR 731 “… determined that the reference must be direct or specific: hence "specifically mention" and "direct allusion".”[58]Rix LJ thought that that was underlined by the current expression “mentioned”.[59]The second matter which Rix LJ identified (at paragraph 24) was that:
“… subject to my first comment, the expression "mentioned" is as general as could be. This is not to my mind intended to be a difficult test. The document in question does not have to be relied on, or referred to in any particular way or for any particular purpose, in order to be mentioned … I do not see why there should be need for a strict approach to a request for inspection of a specific document mentioned in one of the qualifying documents. The general ethos of the CPR is for a more cards on the table approach to litigation. If a party thinks it worthwhile to mention a document in his pleadings, witness statements or affidavits, I do not see why, subject as I say to the question of privilege, the court should put difficulties in the way of inspection. I look upon the mention of a document in pleadings etc. as a form of disclosure. The document in question has not been disclosed by list, or at any rate not yet, but it has been disclosed by mention in what, for the purposes of litigation, is another important and formal category of documents. If so, then the party deploying that document by its mention should in principle be prepared to be required to permit its inspection, and the other party should be entitled to its inspection. What in such circumstances is the virtue of coyness?”
[60]At paragraph 25 Rix LJ said:
“In the present case, the expression which we have to consider begins "he wrote to me" … in my judgment "he wrote" is not a mere reference to a transaction otherwise to be inferred as effected by a document, as in "he conveyed" or "he guaranteed", but is a direct allusion to the act of making the document itself. It is the same as saying "he wrote a writing".”
At paragraph 25 (against letter G on page 1108) Rix LJ said:
“"Document" is defined as "anything in which information of any description is recorded". If one then asks whether the expression "he wrote to me…drawing my attention to the discrepancies" makes mention of "anything in which information of any description is recorded", I would find it hard to explain why it does not.”
[61]Mr Cawson also took me to the case of Dubai Bank Ltd v Galadari (No 2). The judgment of the Court of Appeal was delivered by Slade LJ. At page 738 letters A-D Slade LJ referred to the earlier decision of Mr Justice Chitty in the case ofSmith v Harris (1883) 48 LT 869. There the plaintiff had stated in his statement of claim that during a certain period he and his father had used the word “Glenlivet” on their letters and bill heads. In resisting an application by the defendant for production of those documents the plaintiff had argued that that was only a general reference to documents; but Mr Justice Chitty had held (at page 870): “that is both a general reference and also a special reference to each and every bill head and each and every letter; because the plaintiff, instead of setting out each document separately, refers to them compendiously, that is no reason why inspection should not be allowed”.[62]Slade LJ said that that decision was not binding on the Court of Appeal, but that that court saw no reason to doubt its correctness. In its judgment a compendious reference to a class of documents, as opposed to a reference to individual documents, was well capable of falling within the rule, provided that it was indeed a reference.[63]Mr Cawson explained the actual decision in Dubai Bank v Galadari by reference to what was said by Slade LJ at page 739 below letter H: “In our judgment a mere opinion that on the balance of probabilities, a transaction referred to in a pleading or affidavit must have been effected by a document, does not give the court jurisdiction to make an order under RSC Order 24 Rule 10 unless the pleading or affidavit makes direct allusion to the document or class of documents in question”.[64]Mr Cawson relied upon that case as authority for the proposition that a reference to a document, or mention of a document, may be a compendious reference.[65]Mr Latimer submitted that in the present case the documents of which disclosure was sought by reference to the witness statement of Mr Hunt did not make specific mention of, or direct allusion to, any specific documents, but merely referred to them in passing. That was said by Mr Latimer to be insufficient to amount to “mentioning” classes of documents that did exist for the purposes of CPR 31.14.[66]I accept that there may be a mention of a document if there is a direct allusion to specific documents within a compendious description; but, in my judgment, there must be a direct allusion not to documents in general, but to specific documents within the compendious description, upon which the witness is purporting to place particular reliance in his witness statement. Otherwise, as Mr Latimer pointed out, a witness who in a witness statement indicates that he makes the statement on the basis of information derived from books, files, records and papers of the party to litigation by whom the witness statement is deployed would run the risk of making all of those books, files, records and papers disclosable pursuant to CRP 31.14.[67]In my judgment, that would not be consistent with the overriding objective underlying the ethos of litigation conducted in accordance with the Civil Procedure Rules. In my judgment, a mere generic reference to papers in general is not sufficient to trigger a right to inspection under CPR 31.14.[68]I approach the application for specific disclosure in relation to each of the scheduled classes of documents within schedule one to the application notice against that general background.[69]The first class of documents is the records from Addleshaw Goddard and Tenons referred to at paragraph 18 of Mr Hunt’s witness statement. In paragraph 18 Mr Hunt says:
“However, having reviewed the records from the Addleshaw Goddard and Tenons, as well as carrying out other investigations including an interview with Mr Fielding in respect of TBGL in August 2012, it appears to me that there are factors of substantial importance that should be noted, and which the defendants have avoided referring to.”
[70]There was some debate about whether the definite article “the” in front of Addleshaw Goddard was otiose, or whether the word ‘files’ or ‘records’ had been omitted after the reference to Tenons.[71]In my judgment it does not really matter. What Mr Hunt is doing is merely saying that having reviewed the records from Addleshaw Goddard and Tenons, as well as carrying out other investigations, it appears to him that there are factors of substantial importance that should be noted. In my judgment, that is, as Mr Latimer says, a mere passing reference to documents generally without any attempt to place particular reliance upon any specific documents within the class or description. As Mr Latimer says, there is no specific mention of, or direct allusion to, one or more specific documents.[72]On that basis I hold that CPR 31.14 is not engaged. As Mr Latimer says, this is a request for inspection of several categories of documents bundled into one request; it is effectively a request for all the files or records from Addleshaw Goddard and Tenons.[73]Mr Latimer also makes the point that Addleshaw Goddard are in fact the solicitors who act for the defendants in the instant litigation; they should already have those documents in their files. If the underlying problem was that Addleshaw Goddard needed the liquidator’s permission to release those files to the defendants, then rather than making an application for inspection, then there should have been a request for such disclosure.[74]That may be a valid forensic point; but it does not derogate from my holding that, for the reasons I have given, CPR 31.14 is simply not engaged by the passing reference to “records” in paragraph 18 of Mr Hunt’s witness statement.[75]The second category of documents sought in schedule one to the application notice is the recorded examination of Mr Fielding by the representative of the liquidator (Mr Anderson) referred to at paragraph 22. In my judgment paragraph 22 is ambiguous as to whether what is being referred to is a digital recording or a written transcript of that recording. In my judgment (in its context, and given that paragraph 22 goes on to reproduce and set out a true extract of the interview) what is actually being referred to is not the digital recording (which of course would still be a “document”) but the separate written transcript of the interview. That has already been produced; and although the defendants’ solicitors may not have appreciated the fact, it had already been produced before this application notice was issued, and before Mr Mitchell came to make his witness statement.[76]There is therefore no basis for seeking disclosure of the digital recording in accordance with CPR 31.14. In any event, it is unnecessary in the absence of any suggestion (of which there is none) that the written transcript is not an accurate reflection of the digital recording of the interview.[77]It is conceded that if the guarantee referred to in paragraph 3 of schedule one exists, it will be disclosed, although Mr Latimer submits that it is really irrelevant to any live issue in the instant litigation.[78]Paragraph 4 of schedule one seeks the records and emails referred to in paragraph 31a of Mr Hunt’s witness statement. That is a reference to records from within the files of a company called BHUKL, and emails which had been obtained via the Tenons records.[79]Again I am satisfied that these are mere passing references to documents within a compendious description upon which Mr Hunt is not purporting to place any particular reliance. As such they fall outside the scope of CPR 31.14.[80]As Mr Latimer submits, none of the missing emails are specifically mentioned, or directly alluded to, nor are any of the documents within the records referred to by Mr Hunt.[81]The fifth category is the correspondence between the liquidator and Tenons regarding Burnden Holdings (UK) Ltd: see 34(b). Mr Latimer concedes that that correspondence will be produced; but paragraph 5 goes on to ask for the paperwork referred to further on in 34(b).[82]Again, for the reasons I have already given, I am satisfied that that compendious reference does not engage the provisions of CPR 31.14.[83]The same applies to the Tenons’ records: see paragraph 34(c) at page 19 of the witness statement (page 123 of the application bundle). The same applies to the Tenons records and the other documentation referred to in the first two sentences of paragraph 34(d) of Mr Hunt’s witness statement.[84]Again, I am satisfied that CPR 31.14 is not engaged. In short, for the reasons I have given, the application for inspection under CPR 31.14 in relation to the documents referred to in Mr Hunt’s witness statement is dismissed, save to the extent that Mr Latimer has conceded that specific identified documents will be produced.[85]Schedule two is an application for specific disclosure in relation to three categories of documents.[86]The first is the file provided to the claimant by Tenons to which the claimant has made extensive reference in its particulars of claim. Mr Latimer makes the point that the documents specifically mentioned in the particulars of claim have already been disclosed. The remainder of the Tenons file will be subject to standard disclosure in the usual way; that is to say, by way of mutual disclosure after statements of case have been filed. There is said to be no justification for the defendants to have unilateral disclosure, and to have it before they plead their defence.[87]Mr Latimer submits that the defendants’ keenness to have this file gives the unfortunate appearance of wanting to fit a narrative to the documents; at the very least the temptation may be too hard for Mr Fielding himself to resist.[88]I do not accept that any case has been made out for specific disclosure of the Tenons file in advance of the provision of disclosure in the normal way.[89]The Practice Direction 31A (relating to disclosure and inspection) states (at paragraph 5.4) that “In deciding whether or not to make an order for specific disclosure the court will take into account all the circumstances of the case and, in particular, the overriding objective described in Part 1 [of the Civil Procedure Rules]”. Since there is no existing order for disclosure, it is unnecessary for me to consider the remainder of that sub-paragraph.[90]In my judgment, there is nothing in the overriding objective that would require disclosure of the Tenons file in advance of service of a defence. I do not accept that the defendants need these documents in order to plead a defence to the particulars of claim.[91]In any event, it would be wrong to order such disclosure at this stage, and in advance of the hearing of the summary judgment application. It will put the claimant (a company in liquidation) to expense at a time when the defendants are pursuing a summary judgment application to dismiss the claim. The parties have already agreed that service of the defence will be deferred until after the disposal of that summary judgment application. It would not, in my judgment, be consistent with that agreement, or with the overriding objective, to require any disclosure to be given in advance of the summary judgment application.[92]So far as the Board Minute for the meeting of the claimant’s directors held on 29th August 2007 is concerned, I do accept that that specific document should be disclosed. Mr Latimer submits that unless the defendants are taking issue with what occurred at the Board Meeting on 29th August 2007, then the minutes of the meeting are irrelevant. He says that what occurred at that meeting is referred to in an email of 4th September 2007 (see paragraph 19) from Mr Beckett, the claimant’s Company Secretary and a director. He says it would be surprising if the defendants now take issue with what he wrote. That email does not purport to be a compendious description of all that occurred at the Board Meeting. What was decided at the Board Meeting is an important part of the claimant’s case.[93]In my judgment, it would not be consistent with the overriding objective (and in particular the need to ensure that the parties are on an equal footing) for the defendants to be required to plead to a case founded in part upon what transpired at the Board Meeting without being allowed access to any minute of the meeting itself to which the claimant already has access.[94]There has been no suggestion that the relevant meeting was not minuted, or that the claimant does not have a copy of that minute. I would allow specific disclosure of the minute of that board meeting. It does seem to me that such disclosure would be consistent with the overriding objective. It is a single document; it will cause no difficulty for the claimant to produce it at relatively little cost.[95]Paragraph 3 seeks disclosure of all other board minutes of the claimant for meetings held in 2007 or 2008. I accept Mr Latimer’s submission that that is a sweeping category, with no obvious basis or, indeed, justification. The fact that it is tacked on to the end of the list is telling, as Mr Latimer submits. It does seem to me that it is an archetypal fishing expedition for which there is no stated justification, and which would not be consistent with the overriding objective.[96]I would not allow that head of disclosure. End of judgment JUDGMENT ON COSTS 5th September 2014 HIS HONOUR

JUDGE HODGE QC:

[1]I am satisfied that the appropriate Order in this case is, as Mr Latimer submits, that the applicants (and defendants) should pay 80% of the claimant’s costs of the application.[2]True it is that there was no engagement in correspondence with the requests for specific documents, but that did not justify the comprehensive application that was made and brought before the Court, and brought before the Court on only the minimum of three clear days’ notice.[3]In those circumstances, it does seem to me that Mr Latimer’s proposal of 80% of the costs is, if anything, generous; and, in the exercise of my discretion, I will award the respondent to the application (the claimant) 80% of its costs. End of Costs judgment