Disclosure obligations – how to stay ‘pitch perfect’
12 June 2022
Two well-publicised recent High Court cases have provided useful reminders, to both parties and their lawyers, of the importance of complying with their respective disclosure duties.
Wagatha Christie’s solicitors given a yellow card
The ongoing case of Vardy v Rooney and another [2022] EWHC 304 (QB), concerns the libel claim brought by Rebekah Vardy against Coleen Rooney (aka ‘Wagatha Christie’), who had accused Mrs Vardy of leaking false stories about Ms Rooney’s personal life.
Mrs Justice Steyn recently heard a number of recent applications made by the parties in relation to disclosure.
Mrs Vardy sought an order for disclosure of relevant documents held by six individuals, who had been identified by Mrs Rooney as ‘custodians’ of those documents, as well as further specific disclosure by Mrs Rooney. Mrs Vardy contended that Mrs Rooney’s disclosure had been inadequate because her solicitors had not complied with the principles set out in the earlier case of CMCS Common Market Commercial Services AVV v Taylor [2011] EWHC 324 (Ch). That case stated:
“The solicitor has an overall responsibility of careful investigation and supervision in the disclosure process and cannot simply leave this task to his client… The best way for the solicitor to fulfil his own duty and to ensure the client’s duty is fulfilled too is to take possession of the original documents as soon as possible. The client should not be allowed to decide relevant – or even potential relevance – for himself…. it is then for the solicitor to decide which documents are relevant and disclosable…”
Steyn J held that the way Mrs Rooney’s solicitors had gone about the disclosure exercise could “fairly be criticised”, in particular having asked individuals to search by reference to a much more limited number of search terms than had been agreed with Mrs Vardy, and not overseeing the majority of those searches.
However, the judge decided that notwithstanding these criticisms, it would be unnecessary and disproportionate to grant an order on the terms sought by Mrs Vardy.
A separate application by Mrs Rooney was also rejected, in which she sought permission to rely on documents disclosed in the claim for an additional or separate claim to be brought by Mrs Rooney against a third party for misuse of private information and breach of GDPR. Steyn J agreed with the respondent that such use of these documents would amount to a collateral use, contrary to CPR 31.22.
Ed Sheeran – Shape of You, and your disclosure obligations
In Sheeran and others v Chokri and others [2022] EWHC 827 (Ch), Ed Sheeran was successful in his claim for a declaration that his hit single ‘The Shape of You’ had not infringed the Defendants’ copyright in their song ‘Oh Why’.
However, the Suffolk born troubadour did not escape those court proceedings entirely unscathed, coming in for direct criticism from Mr Justice Meade during an earlier interim hearing. It had been admitted that Mr Sheeran had not carried out his disclosure exercise personally, but that his manager had done so on his behalf.
Meade J ruled “In my view that is unsatisfactory and I order, of my own motion, that Mr Sheeran is to make a witness statement…stating that he has personally satisfied himself that his disclosure obligations have been met”. The judge also commented “I appreciate that [Mr Sheeran and another claimant] are very busy people, with recording and song-writing careers and performing careers to pursue, but they did initiate these proceedings and it is important that people in their position take responsibility for their own disclosure”.
These two cases reemphasise the importance that parties to proceedings personally comply with their disclosure obligations, and that their lawyers exercise proper supervision and control of that process from the outset.
If you wish to discuss any of the issues outlined in this article, or have a dispute which needs to be resolved, then please contact Adam Blenkinsop or another member of the Litigation and Dispute Resolution Team.
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Adam Blenkinsop
Services
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at June 2022.