Application for early specific disclosure was driven by hope of tactical advantage

For the second time in a week I am obliged to Gordon Exall of the Civil Litigation Brief for a link to a new disclosure case.

The case is GEM Environmental Building Services Ltd v London Borough of Tower Hamlets & Anor [2016] EWHC 3045 (TCC) (28 November 2016). The underlying facts involved procurement, and there is a defined approach to procurement cases in Roche Diagnostics.

The opening paragraph of Coulson J’s judgment begins, unpromisingly for the claimant, by saying “The underlying point of principle is the claimant’s potential misapplication – even abuse – of the approach to early specific disclosure in procurement cases” in Roche. If the judge refers to “abuse” in the first line, it’s barely worth waiting for the conclusion.

The details do not particularly matter for the point I want to make and, in any event, the judgment is only 23 paragraphs long. The judge quoted the defendant’s counsel as saying that “the application was needlessly aggressive, misconceived, unnecessary and unjustified” and added that “it appeared to be driven by the claimant’s desire to achieve some form of tactical advantage”.

There may well be judges before whom you can gain a tactical advantage with this kind of application. Coulson J is not one of them. There may well be cases where an early application is both necessary and warranted (and clients love it, of course). This was not one of them

Subject to submissions on costs, it seems likely that the claimant will be paying the costs of the hearing “since that hearing only went ahead at their insistence”.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
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