Maher v Maher & Anor

I also derive particular assistance from para. 78(3) where it was said that para. 7.3 of the Practice Direction emphasises that the issues for disclosure are “only those key issues in dispute” and “does not extend to every issue which is disputed in the statements of case by denial or non-admission”. At para. 79 the point was made that extended disclosure is not “something that should be used as a tactic, let alone a weapon, in hard fought litigation. It is all about the just and proportionate resolution of the real issues in dispute.”

Finally, I was taken to the decision of Mr Richard Salter QC in the case of Ventra Investments Limited v Bank of Scotland Plc [2019] EWHC 2058 (Comm). I was taken to paras. 34 to 41 of the deputy judge’s decision in that case. I derive particular assistance from para. 37, relating to allegations of fraud and misconduct. I also derive assistance from para. 39 where it was said that the limitation on disclosure to that which, in the particular case in question, is necessary for the just disposal of the proceedings and which is reasonable and proportionate, is not intended to hinder the just resolution of substantial cases such as this by making it more difficult for claimants to get at the central documentary evidence that they need.

At para. 40, the deputy judge emphasised that what was required from the parties and the court was a pragmatic, flexible approach to the scope of disclosure, taking into account “all the circumstances of the case, including the factors set out in para. 6.4 … and the overriding objective”. The court was required “to strike a practical balance, in order to decide in each particular case what specific reasonable and proportionate additional disclosure (if any) is necessary for the just disposal of the proceedings. In doing so, the court is not required to shut its eyes to the practical realities of the litigation.” I also note that at para. 41, the deputy judge noted that the obligation which a reasonable and proportionate order for extended disclosure can impose on a defendant can often be the only (or only realistic and/or proportionate) means that a claimant may have of obtaining the information and evidence that he needs to plead and to make out his case so that such an order (for extended or additional disclosure) may therefore be the most practical way of dealing with the case justly.

I bear all of those factors, and the provisions of para. 6.4 of Practice Direction 51U in mind.

The relevant pleaded issue here is that set out at para. 23(b) of the particulars of claim, under the heading “General Concerns”, that the defendants have used company funds to meet their costs of the proceedings herein. Reliance is placed in that regard on the issues of concern set out in the claimant’s first witness statement at paras. 37.4 through to 37.8. There, reference is made to two specific payments of money to the defendants’ solicitors in the months of May and July 2016, before these proceedings were in fact even commenced. However, I note that in para. 37.4 the claimant refers to his concern for some time that his brothers had been using the company’s money to fund this dispute rather than using their own. Mr Weisselberg is right, however, to say that there is no pleaded allegation of general misuse by the defendants of company monies, still less any allegation that they have been acting in breach of fiduciary duty in paying company monies to themselves for improper purposes.

Mr Harper’s position is that this is a straightforward disclosure application and that fact should not be obscured by the amount of material that the application has generated, he says primarily as a result of the position adopted by the defendants. The application bundle assembled by the claimant extends to some 810 pages, to which the defendants have added a supplemental bundle extending to some 710 pages, making in excess of 1500 pages of documentation in all.

Mr Harper relies, in particular, upon the proposition at para. 5.4 of Practice Direction 31A

In my judgment, that statement has now been overtaken by the specific provisions of the Disclosure Pilot, with their emphasis upon culture change and reasonableness and proportionality. In my judgment, this present application should be treated as falling under, and governed by, para. 17 of Practice Direction 51U, relating to failure adequately to comply with an order for extended disclosure. The onus is therefore upon the claimant, as applicant, to satisfy the court that making an order for specific disclosure is reasonable and proportionate, as defined in para. 6.4. That involves having regard to the overriding objective, including the specific factors identified at sub-paras. (1) through to (7). Mr Weisselberg addressed all of those factors orally in his submissions. Mr Weisselberg also made eight specific points at paras 18 through to 25 of his written skeleton. Overall, and looking at matters in the round and by reference to the provisions of Practice Direction 51U, paras. 6.4, 17.1 and 17.2, he submits that there is no basis for the court to order the disclosure sought by the claimant.

Mr Harper submits that on any analysis, the standard disclosure ordered in this case should have included the statements for the defendants’ personal bank accounts because they would show either that the defendants had been making payments to their solicitors for their own legal fees (in which case they are documents supporting the defendants’ case) or any payments made into the bank accounts from the company to finance such payments (in which case, again, they should be disclosed because they are adverse documents supportive of the claimant’s case). They may also show that the defendants have not made payments to their solicitors from their personal bank accounts, in which case again they should be disclosed as documents adverse to the defendants’ case.

I am satisfied that, for the reasons that Mr Harper has given, there may have been a failure adequately to comply with the order for standard disclosure. It does seem to me that perusal of the defendants’ personal bank statements might show either that the defendants have themselves been funding their solicitors or that they have not been doing so; and to the extent that they have been doing so, the bank statements may show whether there are corresponding entries into the bank accounts which, if tied up with the company’s bank statements, may indicate that the company has been making payments to the defendants which have then been used by the defendants in payment of their legal fees. However, a considerable amount of analysis and work will be required to establish whether that is the case.

In my judgment, it would not be reasonable and proportionate, given the imminence of the commencement of the trial, to be requiring disclosure of bank statements at this late stage, which may lead to further inquiries which may, or may not, support the pleaded complaint at para. 23(b) that the defendants have used company funds to meet their costs of the proceedings herein, whether directly or indirectly. In my judgment, it would not be reasonable and proportionate, having regard to the factors in para. 6.4, to order specific disclosure of those bank statements, going back five years to November 2014, at the present point in time given the start of the trial on 13 January, and with the Christmas and New Year holiday intervening.

I accept Mr Harper’s submission that the claimant cannot be held responsible for the delay in this matter being heard between 3 June and today. That is, in large part, down to the attitude taken by the defendants. But nevertheless, this matter would have come before the court four months ago if the claimant had acted promptly in response to DAC Beachcroft’s letter of 30 January.

Given the various factors identified by Mr Weisselberg in his oral submissions addressing the para. 6.4 factors, it would not be reasonable and proportionate, having regard to the overriding objective, to require the disclosure of the bank statements at this late stage. This is a claim involving a dispute over the administration of a trust, and not a claim for breaches of fiduciary duty owed by the defendants as directors of the family company. I accept Mr Weisselberg’s submission that the court should be wary of setting further hares running so soon before the trial; the proceedings are already sufficiently complex and the court should be wary of making them even more so.

I acknowledge the importance of the case to the parties, but that does not require every stone to be turned over, still less for a whole pile of more stones to be imported from a neighbouring quarry. The parties should not be diverted down side tracks to see what use may have been made of company monies. The bank statements certainly exist, although some at least will have to be obtained directly from the defendants’ bank. But it seems to me that they are likely to be of limited probative value in supporting, or undermining, the respective cases of the parties. It would be necessary to subject the bank statements to detailed analysis. The fourth witness statement of Mr Taylor indicates that there is likely to have to be an analysis of cash payments, and enquiries as to the purpose for those payments. It may be necessary to obtain bank statements from the company, which the claimant apparently does not have after about

I must bear in mind that the parties are private individuals and that the defendants say that they have been squeezed financially by the claimant’s failure to authorise what they say is the

Finally, I have to bear in mind that there was a four-month delay before the present application was issued; and, although the claimant cannot be held responsible for the delay since 3 June,

For all of those reasons, therefore, and in the exercise of the court’s discretionary case management powers, and in furtherance of the overriding objective, and bearing in mind the factors indicated in para. 6.4 of Practice Direction 51U, and the need for reasonableness and proportionality so shortly before the commencement of the trial, I would dismiss the application.

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