ICG Manager Limited & Ors v Collins International Valuation UK LLP [2026] EWHC 1346 (Ch)

[2026] EWHC 1346 (Ch)Case No BL-2024-001106
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 05/06/2026
Before
MR DAVID HALPERN KC
Between
ICG MANAGER LIMITED (FORMERLY INTERMEDIATE CAPITAL MANAGERS LIMITED)ClaimantsICG LONGBOW SENIOR DEBT INVESTMENTS NO.1 LLPClaimantBUPA PENSION SCHEME TRUSTEES LTD ACTING IN ITS CAPACITY AS TRUSTEE OF THE BUPA PENSION SCHEMEClaimantAPEX GROUP FIDUCIARY SERVICES LIMITED (FORMERLY SANNE FIDUCIARY SERVICES LIMITED)ClaimantCOLLIERS INTERNATIONAL VALUATION UK LLP T/A COLLIERS INTERNATIONAL (NO. OC391629)Defendant
Ms Nicola Rushton KC and Ms Alicia Tew (instructed by Burges Salmon LLP) for ClaimantsMr Patrick Lawrence KC and Mr Diarmuid Laffan (instructed by RPC LLP) for DefendantHearing Hearing date: 20 May 2026(Draft judgment circulated 29 May 2026))Approved JudgmentThis judgment was handed down remotely at 10.30am on 5 June 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MR DAVID HALPERN KC SITTING AS A HIGH COURT

Mr David Halpern KC :

[1]The Defendant has applied for an order under paragraph 17.1 of PD 57AD to unredact a large number of documents produced by the Claimants pursuant to an order for Extended Disclosure (the “Application”).[2]Mr Patrick Lawrence KC, who appears with Mr Diarmuid Laffan for the Defendant, submits that there are significant breaches of the order for Extended Disclosure because of wholesale and unexplained redactions. Ms Nicola Rushton KC, who appears with Ms Alicia Tew for the Claimants, says that the redactions are justified on the ground that the material is both confidential and irrelevant or alternatively that it would not be reasonable and proportionate to make the order sought.[3]The Application on its face is not limited to the issue of redaction but also includes two other issues which are no longer live: i) It alleges that disclosure was not in accordance with Paragraph 13 (I shall use capitalised paragraphs to refer to PD 57AD) because the documents were not in native format. Burges Salmon, who act for the Claimants, subsequently provided all documents in native format, save for those which had been redacted. The parties agree that it is impossible to provide redacted documents in native format, and hence the refusal to provide the remaining documents in native format depends on whether the Claimants are entitled to redact them. Burges Salmon maintain that the form in which the documents were originally provided was as good as native format and hence there was no breach; this is disputed by RPC for the Defendant. I made it clear that I was not prepared to decide that issue, save in the context of costs, because it is now academic and it would be disproportionate to waste court time on it. ii) It also seeks Extended Disclosure of a wide class of further documents under Paragraph 18. However, this is no longer being maintained by the Defendant.[4]There is also an application by the Claimant to extend the date for service of witness statements pending resolution of the question of disclosure. Both parties sensibly accepted that this required the court to make a case management decision, having regard to the fact that a nine-day trial has been fixed for early October 2026. The facts[5]In 2015 the Second and Third Claimants lent £17.5m to a borrower on the security of a shopping centre in Runcorn (“Runcorn”). They did so in reliance on a valuation from the Defendant in the sum of £28.44m, which is not the subject of any complaint.[6]The Second Claimant is an investment vehicle for the BBC Pension Trust, whilst the Third Claimant, as its name suggests, is trustee of the BUPA Pension Scheme. The First Claimant, which is a subsidiary of ICG plc (“ICG”), acted as their investment manager and the Fourth Claimant was their security agent and trustee.[7]According to the witness statement of Mr David Mortimer of ICG dated 1 May 2026: i) ICG is a FTSE 100-listed global alternative asset manager, which manages assets of some $127 billion dollars worldwide. ii) The loan secured on Runcorn fell within ICG’s Senior Debt Programme (“SDP”) which was intended for clients seeking lower-risk investments, being first mortgages with loan-to-value ratios (“LTV”) not exceeding 75%. SDP investments are traditional fixed-interest income loans with no upside potential, but only downside risks. iii) Most of the investments managed by ICG do not fall within the SDP but within other programmes, including Partnership Loans and Joint Ventures. Partnership Loans are loans with higher LTVs, typically exceeding 85%, which are classified as junior or mezzanine debt (i.e. more risk and more reward), whilst Joint Ventures are arrangements whereby funds managed by ICG are invested jointly with a borrower partner. Most of the shopping centre assets which IGC manages fall within these lending programmes and are not SDP assets. iv) The SDP was grouped into Vintages depending on the period when clients invested. The sole investors in Vintage II are the Second and Third Claimants, who co-invested from 2015 onwards. The investments in Vintage II comprised loans to 13 borrowers, each of which was secured on property with an LTV not exceeding 75%. v) Only two of the loans within Vintage II were secured on shopping centres, viz. Runcorn and Carillon Court, Lougborough. Carillon Court was a very different type of shopping centre and the management of the loan had a very different outcome. Nevertheless ICG has now provided disclosure in relation to Carillon Court, even though Burges Salmon still maintains that it is irrelevant. The remaining assets within Vintage II are other types of real property, some of which are also retail properties. vi) At paragraph 4.5 he says: “Of course, as a responsible investment manager ICGM would be expected to (and did) consider and track the market trends underlying specific asset classes, including shopping centres. This included sometimes obtaining external advice on all investment properties in a certain sector (in whichever fund or vintage the investments were held), as an efficient way to obtain advice both on specific assets and on market trends. I would say that it is clearly prudent management to collect all evidence available – including information from all available ICGM client investments - to compare and contrast how assets are performing alongside key metrics such as income and valuation yields and identify any outliers. This could then inform our strategy as it related to each individual loan. It did not (as Colliers suggest) dictate a sector or portfolio-wide strategy. As part of its duties of management, the First Claimant would consider market trends which were relevant to more than one client, and would report on and analyse assets of the same class (such as shopping centres), notwithstanding that some of those assets were SDPs and others were assets with higher LTVs; this did not mean that the assets were being managed together.” vii) He refers to a shopping centre in Havant which was sold in December 2019. This asset was managed for other clients under a different programme, but he says it shows that ICG would sell where necessary. viii) The investments of other clients are confidential to those clients and are not relevant to the current proceedings, because the loans of other clients were not managed as one portfolio with the Runcorn loan, nor with a universal or sector-specific strategy.[8]The Claimants instructed the Defendant to undertake a valuation of Runcorn in January 2018. It was valued at £23.75m. The Claimants say that this valuation was negligent and that the true value at the time was approximately £16.9m. Paragraph 35 of the Amended Particulars of Claim pleads as the counterfactual that, if the Claimants had received a competent valuation, they would have realised that there had been a breach of the covenant in the loan agreement that the LTV was no more than 75%, and they would have embarked on a course which would have led to Runcorn being sold by 30 September 2018 or alternatively by the end of 2019 (the “Counterfactual”). In the event, Runcorn was not sold until October 2021 and the Claimants say that they were some £6.2m worse off than they would have been under the Counterfactual.[9]Paragraph 38 of the Amended Defence denies these allegations and asserts a positive case in two respects. Firstly, the Counterfactual is inconsistent with the steps which the Claimants actually took. Secondly, if the Claimants had attempted to sell, they would have marketed Runcorn at a price designed to enable them to recover the monies lent, which would have meant that there was no sale.[10]In my judgment it is clear that the Counterfactual is a key issue in the proceedings. Both counsel rightly accept that it is different from the kind of counterfactual referred to in Manchester Building Society v. Grant Thornton LLP [2022] AC 783 at [4](iv), where Lords Hodge and Sales said that “counterfactual analysis of the kind proposed by Lord Hoffmann in SAAMCO should be regarded only as a tool to cross-check the result given pursuant to analysis of the purpose of the duty at (ii), but one which is subordinate to that analysis and which should not supplant or subsume it.”[11]An order has been made for Extended Disclosure, which has resulted in some 462 documents being produced which have been redacted, in some cases heavily redacted. The Claimants say that the redactions apply to data affecting all individual investments other than Runcorn and Carillon Court. This comprises all other assets of the Second and Third Claimants within Vintage II (they have no assets managed by ICG outside Vintage II), all assets of other clients within the SDP, and all assets of other clients outside the SDP. The test to be applied[12]The relevant parts of PD 57AD are as follows: i) 6. Extended Disclosure:
“6.4 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.” ii) 12. Complying with an order for Extended Disclosure: “12.1 An order for Extended Disclosure is complied with by undertaking the following steps— (1) service of a Disclosure Certificate substantially in the form set out in Appendix 4 signed by the party giving disclosure, to include a statement supported by a statement of truth signed by the party or an appropriate person at the party that all known adverse documents have been disclosed; (2) service of an Extended Disclosure List of Documents (unless dispensed with, by agreement or order); and (3) production of the documents which are disclosed over which no claim is made to withhold production or (if the party cannot produce a particular document) compliance with paragraph 12.3.” iii) 16. Redaction: “16.1 A party may redact a part or parts of a document on the ground that the redacted data comprises data that is— (1) irrelevant to any issue in the proceedings, and confidential; or (2) privileged. 16.2 Any redaction must be accompanied by an explanation of the basis on which it has been undertaken and confirmation, where a legal representative has conduct of litigation for the redacting party, that the redaction has been reviewed by a legal representative with control of the disclosure process. A party wishing to challenge the redaction of data must apply to the court by application notice supported where necessary by a witness statement.” iv) 17. Failure adequately to comply with an order for Extended Disclosure: “17.1 Where there has been or may have been a failure adequately to comply with an order for Extended Disclosure the court may make such further orders as may be appropriate, including an order requiring a party to— (1) serve a further, or revised, Disclosure Certificate; (2) undertake further steps, including further or more extended searches, to ensure compliance with an order for Extended Disclosure; (3) provide a further or improved Extended Disclosure List of Documents; (4) produce documents; or (5) make a witness statement explaining any matter relating to disclosure. 17.2 The party applying for an order under paragraph 17.1 must satisfy the court that making an order is reasonable and proportionate (as defined in paragraph 6.4).”
[13]I approach the task of considering the redactions in the following way (I leave to one side any issues relating to privilege, because the Defendant has not challenged any claim to privilege): i) For the purpose of Paragraph 17.1, failure to comply means failure to take one or more of the steps set out in Paragraph 12.1. In the present case the relevant step is (3), i.e. failure to produce documents in full. ii) The starting point is that, once the court has ordered Extended Disclosure of documents relevant to an issue, all such documents must be disclosed in their entirety, subject to Paragraphs 14 and 16. Paragraph 14 is the power to withhold disclosure or production of entire documents in certain circumstances. This is not a live issue before me, but it was an issue before Mr Paul Stanley KC in Al-Aggad v Al-Aggad [2025] EWHC 2608 (Comm). He said at [43]: “once the search has been defined and conducted, I do not consider that a party could legitimately withhold a document from disclosure on the ground that, although adverse to its pleaded case or supportive of another party’s pleaded case, it is not “sufficiently” supportive to be a “key” document, because (after all) the pleaded issue to which it goes will not make a difference.” iii) This dictum applies equally to the question whether a disclosing party is entitled to redact parts of a disclosed document. As Bright J said in LLC Eurochem North-West-2 v Société Générale SA [2025] EWHC 1938 (Comm) in relation to the issue of redactions for alleged irrelevance and confidentiality: “512. Second, these criteria have to be applied scrupulously. It is not acceptable for the party giving disclosure to decide to err on the side of redactions and confidentiality, and then wait to see if any receiving party wishes to challenge its decisions. 513. To do so is not only inconsistent with the principle of open justice and the rules prescribed in the CPR, it has real consequences. It transfers the real decision-making burden to the receiving parties. It adds to the costs of those parties, and to the costs overall. In so far as it results in additional applications or interruptions to the trial, it leads to the loss of time. It thereby causes inconvenience to the court, and to other court users. These matters all have financial implications, which in an appropriate case ought to be reflected in the court’s approach to costs.” iv) Paragraph 12.1(3) must be read with Paragraph 16.1, which permits redaction where the redacted data is both(i) irrelevant to any issue in the proceedings and(ii) confidential. Paragraph 16.2 requires the party redacting documents to provide an explanation. v) Relevance is to be decided by reference to the pleadings: Al-Aggad (ibid) at [45](i). vi) As regards confidentiality, I gratefully adopt the test set out by Cockerill J in Cavallari v Mercedes-Benz Group AG [2024] EWHC 190 (KB) at [34] to [50]. vii) The court has no power to make an order under Paragraph17.1 unless the applicant can satisfy it that there “has been or may have been” a failure to comply; this refers back to compliance as defined in Paragraph 12 (read together with Paragraph 16). The words “may have been” mean that there is a real possibility that there has been non-compliance, not that it has been proved on the balance of probabilities: Public Institution for Social Security v Al-Wazzan [2024] EWHC 480 (Comm), Jacobs J at [17]. viii) If this threshold is met, the court “may” make a range of orders, including the production of documents. The word “may” gives a discretion, and this is the case even if the court is satisfied that there has been an actual failure to comply, and not just a real possibility of failure to comply. ix) The discretion is to be exercised in accordance with Paragraph 17.2, which requires the applicant to satisfy the court that the proposed order is reasonable and proportionate, having regard to Paragraph 6.4. x) However, the discretion under Paragraph 17.1 is not limited to the factors identified in17.2 and may include any other relevant factors, such as confidentiality. xi) One form of order which the court has power to make is a so-called “Hollander” order. This is the term used by Cockerill J in Recovery Partners GP Ltd v Rukhadze [2021] EWHC 1621 (Comm) at [65] as a shorthand reference to the kind of order described in Hollander on Documentary Evidence at 11-17. A “Hollander” order is a pragmatic way forward, but only in a borderline case. It would obviously be unnecessary if the court were satisfied that the threshold under Paragraph 17.1 had been met and that the discretionary test in Paragraph 17.2 was also satisfied. Conversely, it would be inappropriate to make such an order if the court were satisfied that the threshold under Paragraph 17.1 had not been met, or that it had been met but the discretionary test in Paragraph 17.2 had not been satisfied.[14]The overall conclusion I draw from PD 57AD is that the court retains control of the entire process of disclosure and production of documents. A party who gives Extended Disclosure of a document has no right to withhold production of any part of that document on the ground that he does not consider it to go to a key issue in the case. Nevertheless, if the other party seeks to enforce production by requiring the document to be unredacted, the court will not make that order unless the applicant can satisfy the court that it is reasonable and proportionate to do so. The factors set out in Paragraph 6.4, which have to be considered when ordering Extended Disclosure, are also applicable when considering whether to require parts of a document to be unredacted. Has the Defendant established that there has, or may have been, a failure adequately to comply with an order for Extended Disclosure?[15]In her witness statement of 25 March 2026 in support of the Application, Ms Cecilia Everett of RPC said that it has become apparent, following Extended Disclosure, that ICG’s decision-making around the facility agreement did not take place in isolation, but as part of the management of several portfolios of loans and secured assets within the SDP of which Runcorn was part. She submitted that the Counterfactual cannot properly be tested:
“unless the Claimants' disclosure reveals and addresses (as it does not presently) the management of the Facility Agreement as part of that broader portfolio or Senior Debt Programme, which Colliers understands to be named "Vintage II", together with other relevant programmes and funds that invested in properties of a similar nature to the Property (ie secondary shopping centres).”
[16]Ms Everett made this statement before she had seen Mr Mortimer’s explanation in his witness statement (as summarised in paragraph ‎7 above). Mr Mortimer’s explanation of ICG’s modus operandi strikes me as credible, and I accept it. The questions(i) whether Burges Salmon explained, or should have explained, the position sooner and(ii) if so, whether RPC was entitled to make the assumptions which Ms Everett made in the absence of an earlier explanation, go only to costs and I say no more about them at this stage.[17]In the light of Mr Mortimer’s explanation, I accept that ICG would have made a stand-alone decision in relation to Runcorn, not as part of a wider programme. However, that is not the end of the matter. The burden of proof will be on the Claimants at trial to prove the Counterfactual on the balance of probabilities: Perry v Raleys Solicitors [2020] AC 352 at [20]. At one stage Ms Rushton KC suggested that the question whether ICG sold other properties had not been pleaded in the Defence and was therefore not a relevant issue. This was sensibly not pursued. It is not a matter that is required to be pleaded, beyond a general denial of the Counterfactual. The correct analysis is that the redacted data might amount to similar fact evidence, if the circumstances relating to the decisions which ICG took in respect of those other properties are comparable.[18]The admissibility of similar fact evidence was considered in O’Brien v Chief Constable of South Wales Police [2005] 2 AC 534. In that case the claimant’s conviction for murder was quashed after he had served 11 years in prison. He brought proceedings against the Chief Constable for misfeasance in public office and for malicious prosecution, and he sought to adduce evidence of dishonest methods used by the police in two other cases. The House of Lords held that the evidence was admissible. Lord Bingham said:
“3. Any evidence, to be admissible, must be relevant. Contested trials last long enough as it is without spending time on evidence which is irrelevant and cannot affect the outcome. Relevance must, and can only, be judged by reference to the issue which the court (whether judge or jury) is called upon to decide. As Lord Simon of Glaisdale observed in R v Kilbourne [1973] AC 729 , 756: “Evidence is relevant if it is logically probative or disprobative of some matter which requires proof ... relevant (i e logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable.” 4. That evidence of what happened on an earlier occasion may make the occurrence of what happened on the occasion in question more or less probable can scarcely be denied. If an accident investigator, an insurance assessor, a doctor or a consulting engineer were called in to ascertain the cause of a disputed recent event, any of them would, as a matter of course, inquire into the background history so far as it appeared to be relevant. And if those engaged in the recent event had in the past been involved in events of an apparently similar character, attention would be paid to those earlier events as perhaps throwing light on and helping to explain the event which is the subject of the current inquiry. To regard evidence of such earlier events as potentially probative is a process of thought which an entirely rational, objective and fair-minded person might, depending on the facts, follow. If such a person would, or might, attach importance to evidence such as this, it would require good reasons to deny a judicial decision-maker the opportunity to consider it. For while there is a need for some special rules to protect the integrity of judicial decision-making on matters of fact, such as the burden and standard of proof, it is on the whole undesirable that the process of judicial decision-making on issues of fact should diverge more than it need from the process followed by rational, objective and fair-minded people called upon to decide questions of fact in other contexts where reaching the right answer matters. Thus in a civil case such as this the question of admissibility turns, and turns only, on whether the evidence which it is sought to adduce, assuming it (provisionally) to be true, is in Lord Simon's sense probative. If so, the evidence is legally admissible. That is the first stage of the inquiry. 5. The second stage of the inquiry requires the case management judge or the trial judge to make what will often be a very difficult and sometimes a finely balanced judgment: whether evidence or some of it (and if so which parts of it), which ex hypothesi is legally admissible, should be admitted. For the party seeking admission, the argument will always be that justice requires the evidence to be admitted; if it is excluded, a wrong result may be reached. In some cases, as in the present, the argument will be fortified by reference to wider considerations: the public interest in exposing official misfeasance and protecting the integrity of the criminal trial process; vindication of reputation; the public righting of public wrongs. These are important considerations to which weight must be given. But even without them, the importance of doing justice in the particular case is a factor the judge will always respect. The strength of the argument for admitting the evidence will always depend primarily on the judge's assessment of the potential significance of the evidence, assuming it to be true, in the context of the case as a whole.” “Evidence is relevant if it is logically probative or disprobative of some matter which requires proof ... relevant (i e logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable.”
[19]Having regard to what is said in the authorities quoted at paragraphs 13.ii) and iii) above, I am satisfied, contrary to Ms Rushton KC’s submission, that the data in this case is relevant and hence that the Claimants had no right to redact it, whether or not it is confidential. I therefore move to the second stage of Lord Bingham’s inquiry. The test to be applied is that set out in Paragraphs 17.1 and 17.2. How to approach the exercise of the discretion?[20]Mr Lawrence KC points out that the expense involved in unredacting data will be minimal, and further that the cost of providing Extended Disclosure would have been lower if the documents had never been redacted. However, Ms Rushton KC says that this misses the point. If the Claimants are required to unredact the data, then they will also need to give considerable further Extended Disclosure in order to provide a proper context for the data. Not only will this be an expensive disclosure exercise, but it will also have a knock-on effect on witness statements and expert evidence and will affect the length of the trial. These are, of course, among the matters properly to be considered under Paragraph 6.4.[21]Whilst I accept that the decisions made by ICG in relation to other investments which it was managing at around the relevant time may throw light on how it would have behaved on the Counterfactual, I can also see a serious risk that the parties will get bogged down in collateral issues, unless the evidence is sufficiently similar. In order to draw any meaningful conclusions from ICG’s decisions in relation to any other asset, it will be necessary to examine the whole context relating to that asset. This includes ICG’s perception of:(i) the likely rise or fall in the value of the asset,(ii) the saleability of the asset in the short or medium term,(iii) the value of the borrower’s covenant to repay the loan,(iv) the likely shortfall upon sale of the asset and(v) the lender client’s appetite for risk, having regard to whether the asset was within the SDP or had a higher LTV.[22]A further issue relevant to the exercise of the discretion is confidentiality. Mr Lawrence KC submitted that data belonging to third parties was more than five years old and had therefore lost any real commercial sensitivity. I do not accept this. In my judgment it is plain that data belonging to other clients of ICG is confidential and that this confidentiality is entitled to some weight in the exercise of the discretion. However, I reject Ms Rushton KC’s submission that the same applies to data relating to Vintage II assets managed on behalf of the Second and Third Claimants. They have chosen to sue the Defendant and cannot reasonably expect any confidentiality in their documents to carry much weight, if other factors are in favour of unredaction. The redacted material[23]In the light of Mr Mortimer’s witness statement (especially paragraph 4.5) and the submissions made to me, my understanding is that the relevant documents relate to ICG’s analysis which was made in three stages: i) Stage One was the collection of publicly available evidence as to market trends. This enabled ICG to reach provisional conclusions from time to time. Those conclusions are plainly relevant to the Counterfactual. ii) Stage Two was to test those provisional conclusions against the unusually wide range of assets under ICG’s management at the relevant time, in order to see whether the conclusions needed to be refined in the light of ICG’s actual experience of managing assets. This stage fell into two parts: a) The first part was the gathering and analysis of evidence relating to individual assets being managed by ICG. This is of little, if any, relevance insofar as it relates to assets of clients other than the Second and Third Claimant. What matters is not the individual stages of the process adopted by ICG but the general conclusions reached. b) The second part was the general conclusions drawn from that analysis, which resulted in the refinement of the conclusions reached at Stage One. This second part is plainly important evidence in relation to the Counterfactual. iii) Stage Three was to apply the refined conclusions to each asset under ICG’s management. This can be subdivided into assets managed on behalf of the Second and Third Claimants and assets managed on behalf of other clients.[24]The parties sensibly did not seek to address me on every single redacted document but took me to four broad classes of documents.[25]Firstly, there are spreadsheets internal to ICG referring to the 14 shopping centres managed by ICG, 12 of which are not within the SDP. In most cases the Claimants have redacted all information not directly relevant to Runcorn or Carillon Court. One example is a spreadsheet dated 14 March 2018 which includes a bar chart entitled “ICGL Shopping Centre Yield Profile – All Funds”. Above it is the raw material in relation to each investment. This has been redacted for all investments except Runcorn and Carillon Court. However, the bar chart showing the yield profile for all properties is unredacted. Neither party sought to explain what can or cannot be derived from this document, but it seems tolerably clear to me that the bar chart shows the summary of the conclusions reached in relation to the 14 shopping centre investments and that it is unnecessary to see the raw material in order to understand these conclusions. This leaves the question whether any similar bar charts need to be unredacted. As stated above, I conclude that these relate to the first part of Stage Two of Mr Mortimer’s analysis and are therefore of peripheral relevance. All that should be produced is any documents relating to conclusions drawn by ICG as to its general strategy for realising assets. As far as I am aware, all such documents have been produced.[26]There is also a spreadsheet from Knight Frank dated 11 September 2020 which is less heavily redacted than other documents. Ms Rushton KC told me that the failure to redact it more fully was a mistake. Unsurprisingly, it has legitimately given Mr Lawrence KC the opportunity to focus on what is in that spreadsheet and to make submissions on what might be expected to be in the other spreadsheets. In addition to detailed information on, and proposals for, Runcorn and Carillon Court, it also includes similar information about other properties. For the reasons given in paragraphs 21 and 22 above I am not satisfied that it is proportionate to require other similar material to be unredacted, in view of the collateral issues to which this would give rise, at least in relation to data confidential to other clients[27]The second class of redacted documents comprises internal ICG emails relating to the SDP. Once again, many of these relate to other clients. They may throw light on the decisions taken in relation to the sale of assets belonging to other clients, but I am not satisfied that it is proportionate to open up the collateral issues to which this would give rise, at least in relation to data confidential to other clients.[28]The third class of redacted documents comprises investment reports sent to the Second and Third Claimants. Burges Salmon have redacted information specific to investments other than shopping centres, so that the unredacted parts are confined to general market observations and information specific to Runcorn and Carillon Court. As I have said, I attribute little or no weight to the Claimants’ desire to protect their confidentiality in respect of their other investments, but I also bear in mind that these other assets might be of limited relevance.[29]Fourthly, there is a daybook maintained by Mr Machin of ICG, in which he recorded his observations in relation to each asset. This amounts to 619 pages, of which all but 41 have been entirely redacted. The remaining 41 pages relate in whole or in part to Runcorn and Carillon Court, but parts of those pages are redacted. The exercise of the discretion[30]I bear in mind Lord Bingham’s observation in O’Brien that:
“the judge's overriding purpose will be to promote the ends of justice. But the judge must always bear in mind that justice requires not only that the right answer be given but also that it be achieved by a trial process which is fair to all parties.”
[31]I am concerned to prevent the proceedings from becoming bogged down in collateral issues which are unlikely to assist the trial judge, for the reasons given in paragraph ‎21 above. The approach taken by the parties to this Application does not inspire confidence that they will approach the trial in accordance with the overriding objective, if given free rein. I note that RPC’s costs summary for the Application amounts to nearly £140,000, whilst Burges Salmon’s amounts to over £260,000.[32]It would be unacceptable for the Claimants to cherry-pick assets of other clients which were the subject of a sale without the Defendant being able to test whether there are other, and perhaps more similar, cases where ICG did not sell. An obvious example is the shopping centre at Havant, to which Mr Mortimer has referred. As far as I am aware, the Claimants have not disclosed any documents relating to Havant, at least not in unredacted form. Indeed, it is difficult to see how the Claimants could voluntarily disclose documents without breaching the confidentiality of the Havant clients. I say nothing intended to fetter the trial judge, but I make the general observation that, if the Claimants were to rely on Havant at trial, the likelihood is that the court would be in no position to reach a conclusion as to whether Havant was sufficiently comparable to Runcorn in the respects discussed at paragraph ‎21 above without full disclosure in relation to Havant. Nor would the court be able to reach a conclusion as to whether it was fair to look at Havant without also looking at other assets which were not sold.[33]I bear in mind that the burden of proof will be on the Claimants to satisfy the court in relation to the Counterfactual. If the Claimants do not disclose documents showing ICG’s decision-making in relation to similar assets, they might find it difficult to discharge that burden. This is some protection for the Defendant.[34]As regards the investment reports produced for the Second and Third Claimants, I have found it difficult to reach a conclusion which strikes the right balance between these countervailing considerations. I therefore consider this is an appropriate case for a Hollander order, requiring the entirety of these reports to be shown to the Defendants’ legal team in unredacted form. At this stage they should not be shown to the Defendant or used in the proceedings without a further court order.[35]As regards internal emails relating to SDP assets, I understand that all data relating to general observations and all data specific to Runcorn and Carillon Court have already been disclosed. All data relating to other SDP assets managed on behalf of the Second and Third Claimants should be the subject of a Hollander order. I do not extend this to non-SDP assets of the Second and Third Claimants (if any), because these are likely to be of less probative value.[36]As regards the daybook, I consider that it is appropriate for a Hollander order in relation to the 41 pages which refer to the Second and Third Claimants. Some of the redactions appear to refer to other clients. It may be that this was simply Mr Machin’s shorthand way of referring to an issue which arose in relation to those other clients’ assets, and that it is not appropriate to require disclosure relating to those other clients’ assets, but it will not be possible to form a view without a Hollander order.[37]This is not to be taken as a green light for the Defendant to go fishing for further production or disclosure. Without in any way fettering the discretion of any judge who may have to decide whether the documents in the Hollander order should be produced to the Defendant and/or whether further Extended Disclosure is appropriate, I would expect the court to be cautious about allowing reliance on these or further documents unless satisfied as to the strength of their probative value. The length fixed for the trial and the cost budgets ordered by the court should act as constraints on allowing collateral issues to get out of control. Although the court could theoretically adjourn the trial and refix it with a longer estimate and could amend the costs budgets, neither of these steps is likely to be ordered without very good reason. The Claimants’ stay application[38]Witness statements were due to be exchanged on 8 May 2026. On 1 May 2026 the Claimants applied for a stay of case management directions pending resolution of the Defendant’s Application. This application is before me.[39]The Defendant chose to serve its witness statements on time, but the Claimants have not yet done so. Ms Rushton KC submitted that disclosure ought to be completed before service of witness statements, not least because supplementary statements would otherwise be necessary. I agree that this is the case in an ideal world, but not in the present case, where there is a trial fixed for early October 2026 and where the parties’ experts will need to express their opinions in the light of the Claimants’ evidence relating to the Counterfactual.[40]Ms Rushton KC’s skeleton argument sought an extension of time for service of witness statements to 3 July. In her oral submissions, she said that the Claimants will not be ready to serve their statements until 25 June. In my judgment there is no good reason why the Claimants could not have prepared their witness statements on the basis of the evidence currently disclosed in unredacted form. I will extend time to 12 June 2026, but that is a final order. For the avoidance of doubt, the witness statements should not extend to data which is currently redacted. If, following compliance with the Hollander order, further material is unredacted or disclosed, further directions may be necessary for additional witness evidence.[41]I will hear the parties in relation to any further amendments to the timetable, but on the basis that the trial date is not to be moved, and as to costs and any other consequential matters. Conclusions[42]For the reasons set out above: i) I make a “Hollander” order for unredacted copies to be provided to the Defendant’s legal advisers of(i) investment reports made to the Second and Third Claimants,(ii) any redacted pages of internal emails relating to other assets of those Claimants and(iii) the 41 pages of Mr Machin’s daybook which relate to those Claimants. ii) I adjourn the Application for further consideration following compliance with this order. iii) I extend the Claimants’ time for serving witness statements to 4pm on 12 June 2026, with liberty to apply to serve further witness statements in relation to any data currently redacted, if the court subsequently orders it to be unredacted.

Cited in 1 later judgment