A very interesting write up of a recent ruling in Kings Security Systems Ltd v King [2019] EWHC 3620 (Ch) by Sukhi Kaler, Liz Williams and Zoe Homer from CMS. This case is particular interesting because there was a request made for Model E disclosure: the so-called “Peruvian Guano disclosure.”
This case involved serious allegations of bribery and abuse of process and therefore to some eyes could have been suitable for Model E disclosure, however, Master Kaye stressed the need for this Model to be used in exceptional cases only and decided that other models (namely C & D) were more suited for different issues within the case. There were a number of issues that Master Kaye considered when coming to this decision including the level of costs versus the claim size and the lack of proper detail as to the likely cost of Model E disclosure.
I think the learning lesson here is that if you have a case where you believe that Model E is going to be the best approach, then the reasoning and the arguments need to be very well thought out and documented as well as being able to demonstrate the proportionality of such an approach.
This case provides an interesting illustration of the courts’ willingness to adopt a more pro-active approach to managing disclosure under the Pilot, including requiring parties to repeat the exercise of agreeing the list of issues for disclosure. The direction that a disclosure guidance hearing should be listed for two hours is also an indication that the courts are willing to be more flexible in implementing the Pilot than a strict construction of the Pilot practice direction might suggest. Although no actual order for disclosure was made, it is noteworthy that the Master was willing to contemplate disclosure under Model C or Model B even in a case involving what were effectively allegations of dishonesty and bad faith, rather than defaulting to a “train of enquiry” model.
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