An interesting write up by Simon Heatley from Charles Russell Speechlys on a recent decision in the High Court addressing whether the "mention" of a document in a witness statement is sufficient to them to demand its disclosure as part of the litigation process.
Ultimately the Court found in this instance that this was not necessary. CPR 31.14 does allow for a party to request a disclosure of a document mentioned in a witness statement, statement of case, witness summary, affidavit or expert’s report. However, in this case the main drivers behind the decision were that:
- A specific document(s) was not mentioned but rather what was mentioned was a process whereby documents, in their generic meaning, were referred to; and
- The request was not reasonable or proportionate as the requested documents were of no relevance to the issue before the court.
This is useful guidance for anyone undertaking disclosure as part of litigation. What this and other cases continue to show is the fact that courts are taking disclosure requests seriously and pragmatically.
On all cases having a thorough understanding of the systems and data used by the parties involved in the litigation is key to dealing with disclosure in an appropriate and timely manner.
CPR 31 and Practice Direction 51U (the Disclosure Pilot) entitle a party to see a document that has been “mentioned” in a witness statement. There has been much debate in case law and commentary as to what “mention” means so as to give rise to this entitlement. In Mobile Telecommunications Company KSC v HRH Prince Hussam Bin Saud Bin Abdulaziz Al Saud  EWHC 2968 (Comm), the High Court was asked again to grapple with the issue... The court held that the words ‘filed with the Saudi Court together with MTC’s appeal against the decision of the Riyadh Enforcement Court’ did not include a reference or direct allusion to any document, but were merely descriptive of the process of appeal to the Saudi Court. In any event, it would not have ordered disclosure as it was not reasonable or proportionate...