You’ve had a case management conference (CMC) and directions for trial have been given. You have a deadline by which to complete disclosure. A few months after this deadline, your client tells you that they have found further relevant documents which are helpful to their case. You want to rely on them and you have a duty to disclose them, but the other side opposes their inclusion at trial. What do you do?
Not so fast. In McTear & another v Engelhard and others the Court of Appeal provided some guidance in the context of failures to comply with disclosure deadlines. Arguably, it is not that straightforward.
The background of McTear
After deadlines for trial had been set down, the defendants applied for an extension of time or relief from sanctions in relation to documents lately discovered. Some of those documents were earlier emails between the parties. The first instance judge refused the application. Interestingly, the Court of Appeal considered that the first instance judge was not right to treat the application as purely one for relief from sanctions.
The Court of Appeal accepted that the failure to produce the documents at the initial disclosure stage was a significant breach. However, the court considered that there was an excuse in this case. The documents were thought to have been destroyed. However, they were discovered when new counsel emphasised the need to look for them. In those circumstances, the most important question was whether the claimants could properly deal with them at the forthcoming trial; the Court of Appeal was of the view that they could.
The Court of Appeal also stated that every aspect of each case cannot be viewed only in terms of relief from sanctions. CPR 32.11 provides for an ongoing duty of disclosure. In the court’s view, those obligations did not excuse the breach of an order for disclosure that was limited in time, but the court did have to take these duties into account in considering the extent of any permitted usage of documents found after such an order expired.
Practical points following McTear
So where does the McTear decision leave solicitors at the coal face?
The approach in McTear does not create a different test to that expressed in Denton.
The Denton principles are embedded within the McTear judgment and were clearly at the forefront of the Court of Appeal’s mind. Although the Court of Appeal did state that the issue was not simply an “application for relief from sanctions”, it applied the three stage test in Denton, finding first that the breach was serious and significant. It then looked at whether there was a good reason for the breach (that is, an “excuse”). In relation to whether or not the claimants were able to deal with the documents at trial, the question addressed the third stage of the Denton test, namely considering all of the circumstances of the case in order to deal with the application “justly”. These included:
- The need for litigation to be conducted efficiently and at a proportionate cost.
- The need to enforce compliance with rules, directions and court orders.
The same applies to the consideration of the litigating parties ongoing disclosure obligations.
The judgment does, however, provide excellent and specific guidance on the factors that should be taken into account in the context of failure to comply with disclosure obligations and the automatic sanction applied under CPR 31.21.
Practical points that dispute practitioners may wish to take away from this case include:
- Make sure that you have gone through every possible means of communication with your client, including emails, text messages, Whatsapp messages, telephone call logs and so on, in order to ensure you have disclosed everything relevant. If necessary, seek expert assistance with pulling emails from Outlook or other software. If a party in breach of its disclosure obligations is seeking to rely on the undisclosed documents at trial, the failure to adduce the documents earlier, on balance of prejudice, arguably weighs against the relying party. The earlier the documents that assist its case are out there, arguably the chances of an early settlement, for example, are higher. However, not disclosing them earlier, runs the risk of the imposition of the sanction in CPR 31.21.
- If you find yourself in the situation where your client has discovered new documents, make sure to ask them exactly why they did not look in the place where they have now been found, and ascertain whether or not that reason is reasonable.
- Make sure any witness statement attached to the application for relief from sanctions addresses the requirements, not only of Denton, but also of McTear.
- If your client is of the view that the other side would have received the documents at some point prior to the disclosure deadline, make that fact clear in the witness statement; if possible, provide proof. In McTear, the court took into account the fact that some of the documents were emails between the parties, which the other side ought to have disclosed themselves.