The dispute concerned drainage on a piece of land that had been split into three parts. Taylor Wimpey and Harron Homes owned one part of the land each, with the third owned by another party. All three owners executed a collaboration agreement, which provided for the development of the land, split into three separate parts. The agreement required drainage to be constructed correctly and in accordance with the development requirement, to ensure that the drainage was adopted by the statutory undertaker, Yorkshire Water. Yorkshire Water refused to approve the drainage on Harron Homes’ land, and a dispute arose between Taylor Wimpey and Harron Homes with respect to the drainage systems on their respective sites. Both parties argued that the other’s drainage system was not constructed to adoptable standards.
Fraser J focused on CPR 31.16(3)(d), which only permits an order for pre-action disclosure where such disclosure is desirable in order to:
“(i) dispose fairly of the anticipated proceedings;
(ii) assist the dispute to be resolved without proceedings; or
(iii) save costs.”
In considering the above, and in particular whether or not the court should exercise its discretion to order pre-action disclosure in light of the facts of the case, Fraser J made the following key findings.
The collaboration agreement contained an expert determination provision, a type of alternative dispute resolution (ADR). Fraser J discussed the fact that ADR has a vast number of advantages to parties to commercial agreements, and held that “[t]he court in all cases will be astute to prevent pre-action disclosure being used either to frustrate, impede or interfere with contractually agreed ADR mechanisms.”
It was significant that Harron Homes had referred the matter for expert determination, a process which Taylor Wimpey was opposing for jurisdictional reasons. Whether or not this opposition was justified, it was:
“… notable… that the documents which [Taylor Wimpey] seeks are clearly those that could be obtained within that expert determination process. In one sense, this application could be seen as an interference with that expert process.”
However, whether or not such interference existed:
“… the attempts by [Harron Homes] to adopt the contractually agreed mechanism to resolve the dispute, rather than issue proceedings in the High Court, is an important factor.”
Ultimately, making the orders requested would risk allowing pre-action disclosure to be used either to frustrate, impede or interfere with the contractually agreed ADR mechanisms contained in the agreement. Whether or not this was intentional, it was not desirable.
It was also relevant to the exercise of the court’s discretion that the parties engaged in a pre-action protocol process about one year before Taylor Wimpey made its application for pre-action disclosure, and Taylor Wimpey did not request the documents as part of that process.
Even absent the expert determination process, the facts of the case demonstrated that it was unlikely that the disclosure stage in Technology and Construction Court proceedings would be reached, and there was nothing on the facts that would justify an order for pre-action disclosure in any event.
Additional takeaway points
Fraser J also made the following pertinent observations regarding the way in which Taylor Wimpey pursued its application, which are helpful to keep front of mind when making a pre-action disclosure application under CPR 31.16:
- In its evidence in support of its application, Taylor Wimpey did not sufficiently deal with Harron Homes’ referral of the dispute to expert determination under the agreement and Taylor Wimpey’s position in those proceedings (namely, Taylor Wimpey’s failure to engage and agree to appoint an expert on jurisdictional grounds). Although noting that the duty of full and frank disclosure does not apply to the same extent that it would apply upon a party who comes to the court ex parte, Fraser J considered that it was not helpful that Taylor Wimpey failed to “include or address a central factor that will be significant and relevant to the application.”
- Taylor Wimpey’s decision to serve further evidence three days prior to the commencement of the hearing, and on the day when Harron Homes was due to serve its own evidence in response, “could hardly be said to be helpful. Whether this delay in serving the statement was inefficiency – which itself would have been unhelpful – or litigation game playing, is not entirely clear.”
- Fraser J was not impressed with Taylor Wimpey’s attempt to have the matter proceed without a hearing given the matter was very likely to be contested, noting that “[s]pecifying that such applications should be dealt with “without a hearing” by ticking that box in Section 5 of the Application Notice N244 is never likely to be constructive, when the subject matter of applications is highly contentious…”