Royal Borough of Kensington and Chelsea v Beko Poland Manufacturing Sp z o.o & Ors

THE JUDGE: We will deal firstly with the discrete issue which arises in relation to the claimant's application for early disclosure of inspection notes and photographs from Exponent's inspection of the fridge freezer which the Inquiry found to be the point of origin of the fire. No finding was, however, made in the Inquiry as to the cause of the fire in the fridge. The claimants have, in these proceedings, now pleaded a positive case as to the probable cause.

The inspection notes and so forth are in the control of the Beko defendants. Although the report that followed is available, any contemporaneous notes made by those inspecting have not yet been disclosed. Subject to any issues of privilege, they will be disclosed in due course.

In summary, the application was made on the basis that it is central to the claimants’ case against the Beko defendants that they can establish not only the source of the fire but the cause. Whilst they may in due course ask the court to draw inferences as to the cause, in other circumstances it would be highly material for them to be able to inspect the fridge with a view to identifying the cause. But they cannot inspect the fridge themselves and, for that reason, wish to see any relevant contemporaneous material.

As we see it, the application for early disclosure was, against this background, driven by the claimants’ desire to engage in mediation before full disclosure. They are not alone in that and a significant number of defendants supported that proposal. The claimants had no other basis on which to seek early disclosure, so although the intention was to facilitate mediation which was part of case management, a discrete application was necessary.

The application was opposed on a number of bases. We refused the application, in short because we could see no compelling reason for early disclosure. The report produced after the inspection was able to identify possible causes of the fire but not the cause of the fire in the fridge. There is therefore little reason to think that inspection notes will provide the answer to that question. But more importantly, they will be disclosed in due course anyway. Once the prospect of an early mediation receded, so did the argument for early disclosure.

Beko now seek their costs of this application on the basis that they were the winning party and that they had expended costs specifically referable to this application rather than to the CMC as a whole. If this application were looked at in isolation, that would be a strong argument.

However, in our view, this application cannot and should not be looked at in isolation. It was part of a strategy to ensure an early but effective mediation. Although the claimants did not achieve what they sought in this respect, that was all part of the overall case management of these proceedings, and it should be clear from the ruling that we gave that we only with some reluctance came to the conclusion that an early mediation would not be effective.

We therefore think that we should treat the costs of the application for early disclosure of inspection notes etc. as part of the case management and that the appropriate order is costs in the case.