Montpellier Estates Ltd v Leeds City Council

Last Wednesday and Thursday I heard five applications for disclosure, security for costs, and an order under CPR 18.1. The applications are in respect of proceedings brought by the claimant, Montpellier Estates Ltd (“MEL”) against the defendant, Leeds City Council about its procurement competition for a proposed “Leeds Arena”, involving a 10 acre site, “City One”, owned by MEL. MEL is controlled by Ms Jan Fletcher OBE, a well-known person in Yorkshire who has been involved in a variety of public service roles promoting the region for many years. The trial is due to be heard in the autumn. The current estimate is that it will take seven weeks. This was the second substantial hearing of pre-trial case management issues. There was a two day hearing before Simon J in January, as to which see [7].

The pre-trial timetable is getting tight. Statements were due to be exchanged last week but have not been in part because of these applications. The way these proceedings have been conducted means that a number of minor matters on which the answer was reasonably clear were only resolved during the course of the hearing. This is regrettable. If the trial date is to be maintained, it is important that the remaining pre-trial case management matters are resolved as soon as possible. I will hear submissions on the directions that should be given in the light of my decisions. There may additionally be an advantage in identifying the trial judge so that he or she can oversee these matters and provide continuity. That would also enable the question of venue raised by Simon J to be addressed. At present the trial is to be in London. Simon J inquired why this was and observed that, with sufficient notice, it might be possible to assign a London-based judge to hear the case in Leeds.

Before turning to the applications before me, I summarise the underlying dispute between the claimant and the defendant, and the procedural history. The dispute concerns a procurement tendering process for a proposed “Leeds Arena”, a major project valued at approximately £70 million. The process was initiated in July 2007. The second and third stages in it were invitations “to participate in dialogue” and “to continue in dialogue” about the contract to develop the Arena. The claimant entered the competition on 22 August 2007 and, on 10 September 2008, made its submission in respect of its “City One” site. There was one other company involved in the competition. The process, however, concluded on 5 November 2008, when the defendant terminated the competition. On 2 February 2009 the claimant instituted proceedings alleging the defendant had breached its duty under the Public Contracts Regulations 2006 and Directive 2004/18/EC. On 14 December 2010, it launched a claim in deceit against the defendant. The claims were consolidated by Master Eastman at a CMC on 23 May 2011.

In a nutshell, the claimant alleges that the procurement exercise was a sham, and that, from not later than October 2007, the defendant planned to develop the Arena itself. It is alleged that from March 2007 until April 2008 the defendant induced the claimant to participate in the procurement exercise by fraudulent misrepresentations. The claimant’s case is that the defendant informed it that bids might be compared to a benchmark site, a “public sector comparator”, in order to assess whether the private sector bids provided “value for money” but concealed from the claimant its plan to develop the Arena itself on a site it owned. It claims that, while ostensibly conducting the procurement competition in accordance with the rules, it was working up its own plan. Its pleaded case is that in the normal course of events it would have sold City One but, as a result of the false representations, it remained in the procurement competition, and has suffered loss as a result of the substantial fall in property prices between October 2007 and November 2008.

The defendant “vehemently” resists the proceedings, in particular the allegation that senior employees and professionals engaged by it acted fraudulently. It maintains that its only interest in developing the Arena itself was as a fallback if the procurement exercise failed, either because there were no “value for money” bids from the private sector, or for other reasons. Its case is that, after the collapse in property prices and the consequences for development possibilities, during 2008 it became apparent that there was a real risk that the bids which had come forward might either not be “value for money” or not be viable. It maintains that it was only at that stage that the idea of undertaking the development itself arose for consideration. Prior to that, all that the defendant contemplated was comparing the sites and bids by private developers with what a good public service comparator could provide in order to ensure that a private development provided “value for money”.

I have referred to the CMC on 23 May 2011. Standard disclosure was originally due by 29 July 2011, but the date slipped. An application by the defendant for an extension of time was granted by Master Eastman on 26 August 2011 and lists of documents were exchanged on 28 October 2011. Some 29,000 electronic and 1,500 hard copy documents were disclosed by the defendant.

On 26 and 27 January this year, Simon J dealt with an application by the defendant for security of costs lodged on 15 September 2011, and applications by the claimant for disclosure lodged on 13 December 2011. It is not necessary to set out the terms of Simon J’s orders. In summary, he ordered that the defendant disclose emails in the date range 1 January 2006 – 1 December 2008 on the servers, laptops and desktop PCs of eight named individuals, and the personal assistants of six individuals, and documents within the scope of standard disclosure on those servers, which have been referred to as “loose” documents. He also made orders in respect of deleted data and the position of laptops and PCs of custodians the location of which had not been identified.

The claimant obtained less than it had sought in that Simon J made no order in respect of PDAs and mobile phones because he did not consider that practical, the searches for the key protagonists were limited to specified keywords, and a more limited order than had been sought was made in respect of deleted data and non-work emails. Because Simon J considered the claimant had jumped the gun in making its application, he ordered it to pay 25% of the defendant’s costs. Since Simon J’s order a further 9,000 electronic and 1,000 hard copy documents have been disclosed by the defendant. Some are duplicates of documents previously disclosed.

As far as the defendant’s application for security for costs is concerned, Simon J did not make an order in the light of undertakings offered. He indicated that, if satisfactory undertakings were not forthcoming, the application could be renewed. Because of the sensitivity of the information considered in respect of this application, Simon J heard this application in private. Accordingly, I set out the material recitals and terms of his order in a confidential annex to this judgment.

The evidence on behalf of the claimant consists of three statements of Michael Robert Wilson, an associate employed by Walker Morris, the claimant’s solicitors (respectively dated 25 April, and 1 and 3 May 2012), and a statement of Jan Fletcher dated 24 February 2012. The evidence on behalf of the defendant consists of the tenth to thirteenth statements of Jonathan Mark Hainey, a member of Cobbetts LLP, the defendant’s solicitors (respectively dated 21 and 27 March, and two dated 1 May 2012), and three statements of Duncan Christopher Hope, a solicitor at Cobbetts LLP (two dated 1 May 2012 and the third dated 4 May 2012).

The first two applications in time are those of the defendant. The first concerns security for costs and an issue that has arisen about the undertakings. Simon J ordered that the parties were to endeavour to agree the undertakings by 24 February 2012, but failing such agreement, the defendant had liberty to apply by 2 March for the final determination of its application for security for costs. This matter was initially reserved to Simon J, but he is involved in a complex and lengthy criminal trial and has not been able to hear it. As the application was only filed on 21 March 2012, the defendant requires an extension of time, but the claimant did not suggest that time should not be extended. I too heard this matter in private. The defendant’s present application primarily concerns the adequacy of a valuation. I have concluded that what was provided was not adequate. My reasons and what I consider is required are contained in the confidential annex to this judgment.

The second application is dated 28 March 2012. The defendant seeks specific disclosure of documents mentioned in any statement of case that have not been disclosed, documents relating to the claimant’s case on quantum, electronic disclosure in the date range 1 January 2006 – 31 December 2008 of material on the servers, desktops and laptops of twelve named individuals who are the claimant’s professional advisers, and a search for and disclosure of hard copy documents within the scope of standard disclosure in the files of the named individuals. The claimant’s position is that it has provided much of what had been sought, but that the defendant is not entitled to an order in respect of the electronic material on the equipment of the claimant’s professional advisers.

The defendant maintains that what the claimant has provided in the face of the application has raised further questions. These questions concern redactions, a site adjacent to the “City One” site described as the “LA Bowl site”, and incomplete documents, that is documents with parts missing. These questions are raised in Mr Hainey’s twelfth witness statement dated 1 May 2012. The claimant’s skeleton argument maintained that it was not appropriate to make the further request in a witness statement, and to bounce the claimant with it, because a response would take some time. It maintained that a further application should have been made but, in the event, Mr Hollander QC was able to deal with the issues.

The other three applications are dated 1 May 2012. The first of these is by the claimant for an “unless” order, i.e. that unless the defendant fully complies with the order of Simon J dated 27 January 2012, in particular in respect of what I have referred to as “loose” electronic documents from the defendant’s server, by a stated date, its defence be struck out. The claimant also applies for specific disclosure concerning deleted and overwritten files, user profiles, and that the e-disclosure include further custodians and further keywords, and that the defendant swear an affidavit dealing with document preservation issues. The latter application is made because the claimant submits the defendant contemplated litigation since at the latest the autumn of 2008 but documents in that period have been deleted.

The second of the 1 May applications is by the defendant and is in effect the mirror image of the claimant’s application for an “unless” order in respect of the “loose documents” on the server. The defendant applied for the variation of Simon J’s order to exclude documents on the defendant’s server other than emails from the e-disclosure. It did so on the ground that it has turned out, contrary to expectations, that compliance with Simon J’s order in respect of the documents other than emails would be disproportionate to the likely fruits. This is because Cy4or, the defendant’s e-disclosure and IT adviser, considered it may require some 57,600 documents to be looked at, and because of the cost, which is estimated to be between about £70,000 and £140,000.

Cobbetts first raised this issue in a letter dated 20 February 2012. Since then there have been discussions between the solicitors and the parties’ e-disclosure and IT advisers about alternative ways of conducting the search. There, however, remains a difference between the views of the experts. The claimant’s position, on the basis of advice from Deloittes, the claimant’s adviser, is that compliance with Simon J’s order is likely to require approximately 29,600 documents to be looked at. Mr Cawson QC, on behalf of the defendant, submitted that, even taking this lower figure, it is an enormous task for standard disclosure and is disproportionate in the light of the emails and other material that has been disclosed from the PCs and laptops, and in hard copy documents. Approximately 38,000 electronic documents and 2,500 hard copy documents have already been disclosed (see [6] and [8]).

The third of the 1 May applications is that of the defendant for an order under CPR 18.1. The first part of this is for an order that the claimant provides further and better particulars of its case on “scoring” of the private sector bids and the public sector comparator, in particular in relation to the processes of “normalisation” and “risk adjustment” adopted by the defendant in comparing the private sector bids with its public sector comparator. The second part is that the claimant confirms whether it alleges a claim in conspiracy (referred to in a skeleton argument but not in its pleading) and, if so, provide full particulars including the identity of the alleged conspirators.

At the hearing the main areas of dispute concerned the claimant’s application for disclosure of the “loose” documents on the defendant’s servers, and the defendant’s application for e-disclosure by seven of the claimant’s professional advisers. I first deal with these.

The claimant’s case on the disclosure of the “loose” documents on the defendant’s server is that the defendant substantially offered to undertake this search in respect of five of the custodians at the hearing before Simon J, and Simon J ordered that it be done in respect of two additional custodians. The search for the “loose” documents on the servers is important, submitted Mr Hollander, because the defendant had resisted searches of PCs, laptops and non-work emails on the ground that its employees were strongly encouraged to store documents centrally on its server. Accordingly, the fact that PCs and laptops have been searched does not suffice. I observe that this argument has considerable force because not all custodians’ PCs and laptops have been searched. Some (see [7], [44] and [47]) have not yet been identified. Mr Hollander also pointed to the fact that the defendant’s submission that this search is disproportionate relies on estimates rather than fact. He argued that, in the light of the background and the difference between the experts, the correct approach to the potential disproportionality identified by the defendant is for there to be a staged approach which would seek to get a more accurate picture of what is involved.

Mr Cawson submitted that the defendant did not resist the inclusion in Simon J’s order of a search of the “loose” documents on its server because it was attempting to be constructive in the face of an application which had been brought on too quickly, a matter recognised by Simon J in his costs order. The difficulties in searching for the “loose” documents had not been identified at that stage. Once the defendant realised that there were problems, it raised the matter promptly. He submitted that now that the claimant has copies of the emails, the physical documents, and copies of the material from PCs and laptops of the named custodians, and the personal assistants of the key participants, what was left must be seen as only concerning less central or even peripheral players. Mr Cawson also submitted that there was a disproportionate number of key words, and pointed to practical difficulties in relation to, for example, “Sovereign Street/Sovereign St”.

As to the fact that this issue concerns an order already made for a search to be undertaken, Mr Cawson submitted that while the court may, on an application under CPR 31.12, order the disclosing party to carry out a search that it ought to have done, the wording of CPR 31.12 contemplates that it might not do so if the search which should have been carried out would, if carried out at the second stage, be disproportionate as regards cost and the likelihood of revealing anything worthwhile. He pointed to the judgment of Morgan J in Digicel v Cable and Wireless [2008] EWHC 3633 (Ch) at [53] and submitted that, for this reason, Simon J’s order should be varied to exclude the “loose” documents on the server other than email from the e-disclosure requirements.

Disclosure under the CPR is a continuing process and part of case management. It is (see Toulson LJ in North Shore Ventures v Anstead Holdings Ltd [2012] EWCA Civ 11 at [42]) always open to a court to revisit an earlier procedural order. But in this case, the court is not in a position, on the material placed before it by the parties in their respective applications, to resolve the conflict as to the number of the “loose” documents which the search of the named custodian will produce, and which will have to be examined by Cobbetts.

I have concluded that the appropriate way forward is the staged approach advocated by Mr Hollander. I have indicated that I do not consider the fact that the claimant now has copies of emails, documents and the material on the custodians’ PCs and laptops has changed the position. I also reject the submission that the defendant did not have time to assess the position before the 27 January hearing. The claimant’s witness statement was served before Christmas. Before the January hearing, the defendant’s solicitors had said they would make inquiries about the cost of the searches. It may be that at that stage they were concentrating on resisting the searches of PCs, laptops, PDAs, mobile phones and non-work emails and the position of the main server was not adequately considered. But PD 31B requires parties to litigation to consider the feasibility, cost and proportionality of searches at an early stage.

I shall therefore order that the defendant, within a short time of this decision, load onto the Clearwell system or such other system as it considers adequate for the purpose, the electronic data harvested in relation to the custodians. It should apply the keywords other than “Sovereign Street/Sovereign St” (if the difficulty as to that is not resolved) to such data for the date range in Simon J’s order, and provide the claimant with the total number of document hits for each custodian and for each keyword. The parties should meet shortly thereafter to discuss and, so far as possible, agree a proportionate search by the defendant based on this data. The discussion is to include consideration of further refinement to the keywords, either by exclusion or by adding further keyword limiters. I will hear submissionas to the dates for these stages. If the parties cannot agree a proportionate search, both parties shall have liberty to apply for the matter to be resolved by a judge. Since I will not be available after 23 May, it is not practical to reserve the matter to myself.

I turn to the defendant’s application that the material on the servers, desktops and laptops of twelve named individuals who are the claimant’s professional advisers in seven firms be searched in the date range 1 January 2006 – 31 December 2008 against certain keywords. This application had been made before the CMC before Master Eastman in May 2011, but was not pressed when it was resisted by the claimant. The defendant, however, reserved its position. Mr Cawson stated that it did so because the Practice Direction encourages an incremental approach, and in order to see what material originating with the claimant’s consultants was disclosed by the claimant as part of its standard disclosure.

Mr Cawson submitted that, while there had been disclosure of material that was electronically transmitted to the claimant, and more recently of hard copies of notes by the consultants at meetings they attended, material in communications between advisers which was not copied to the claimant is vital for two reasons. The first is that the core of the claimant’s case is that deceitful statements were made by the defendant. Since the claimant’s advisers were present at many meetings, including that on 1 July 2008 when it is alleged representations were made, what was said between advisers may be crucial as to whether deceitful statements were made. It may also be important evidence about the claimant’s understanding of what was in fact said by or on behalf of the defendant.

Secondly, the other key questions are whether the claimant’s bid was (a) “value for money”, and (b) viable. Mr Cawson submitted that the views of the claimant’s advisers are highly relevant to this question. He argued that the distinction taken by the claimant between involvement in the entire bid process (as the claimant contends the defendant’s advisers were) and being only involved in the preparation for the bid (as it contends its advisers were) is “incomprehensible” and not practical. He submitted that what was to be included in the claimant’s bid is in issue because it goes to the question whether the claimant was ever willing or able to put together a bid which was value for the defendant’s money. The views of the claimant’s advisers as to the need to demonstrate value for money and the claimant’s ability to do so are, he argued, highly pertinent to the issues which will arise at trial.

Mr Cawson also submitted that this is seen from such disclosure as has already occurred. A number of the manuscript notes (for example, Davis Langdon’s notes of meetings on 14 April, 29 May and 27 August 2008) demonstrate an awareness by the claimant’s advisers of the problems caused by the economic downturn, and the value the claimant was placing on the City One site. There are also examples of emails between advisers which were not copied to the claimant: Mr Cawson pointed to an email from Sue Ansbro to Jean Dent dated 20 June 2006.

The claimant opposed this application for five reasons. First, it has already given electronic disclosure in relation to its custodians, and that would include all relevant documents sent to or from its external advisers. Secondly, the proposal that there should be a further systematic electronic search in relation to the twelve external adviser custodians spread across seven different firms would be an enormous task. There is no proportionate justification for it, since the claimant has given full electronic disclosure of any documents concerning communications it had with its advisers. Thirdly, the claimant relied on the difference, as it sees it, between the defendant’s advisers, some of whom it describes as “key protagonists in the litigation”, who made several of the deceitful representations pleaded, and its own advisers. Fourthly, the claimant has disclosed relevant hard copy documents in its possession or control, including meeting notes prepared by its advisers.

The fifth ground of the claimant’s opposition is that it has no legally enforceable right to search the servers, laptops and desktop PCs of the twelve individuals, and therefore this application falls outwith CPR 31.8(2). In the case of the claimant’s former legal adviser, Mr Finfer, documents on his computers and servers are likely to be privileged. Mr Hollander relied on the rule that, in the case of a professional man, his own working papers belong to him and not to his client: see Matthews and Malek Disclosure (4^th ed.) 5.48. As to the suggestion made by Mr Cawson that the court order the claimant to use its best endeavours to obtain this material, Mr Hollander submitted that this was precluded by the decision of the Court of Appeal in Dubai Bank Ltd v Galadari (No. 6) The Times, 14 October 1992. The Court of Appeal stated that the court has no power to do this.

Leaving aside the issue as to “control”, at the heart of the distinction the claimant seeks to make between the position of its advisers and those of the defendant, is the suggestion that the internal communications of the claimant’s advisers are not relevant to the issues that will have to be determined at the trial. On this matter, I accept Mr Cawson’s submissions. Apart from the issue of “control”, I would have been inclined to order a targeted and staged search of the servers and computers of the claimant’s key advisers, provided that is not disproportionate. Both the initial two year period, and the interim twelve month period identified by the defendant, seem to me to be too wide, and the proposal that the search be for the documents of twelve custodians does not appear to be closely targeted. There is no evidence before the court about what would be involved in the way that there was evidence (albeit conflicting) about the consequences of a search of the defendant’s server for the “loose” material: see [15] – [16]. The approach in Digicel v Cable and Wireless [2008] EWHC 3633 (Ch) at [53] and the need to keep costs in proportion even though stones might be left unturned, as to which see Nichia Corporation v Argos [2007] EWCA Civ 741 at [46] – [51], [71] – [72], [77] and [81], suggest that a strong case would have to be made for what is likely to be a very large undertaking.

Mr Cawson, perhaps recognising that, having resisted the application for the search for the “loose” documents of ten custodians on one server on grounds of disproportionality, this was a real issue here too, stated that the period of any search could be narrowed to the crucial period between April and November 2008. He also stated that the number of custodians could be limited, and when asked to identify the key custodians, named six of the twelve listed in the draft order. They are Martin Jennings and Richard Grover of Davis Langdon, John Rhodes of HOK Sport, Paul Irwin of ARAP, Andrew Finfer, of Schofield Sweeney, the claimant’s solicitor, and Sue Ansbro, of Whyte Young Greene.

As to the control issue, Mr Cawson pointed to the fact that the defendant had not raised issues of control in relation to material on the servers of its advisers. He also observed that it would be possible for it to seek a third party disclosure order. He submitted that the court is entitled to make an order under the CPR, and pointed to Parts 18 and 35, which are stated to be possibilities by Matthews and Malek at 5.47, and also to CPR Part 3. He relied on the comment in the White Book (31.8.3) that documents in the possession and control of a non-party may fall within “a party’s ‘control’ if there is a prior or current practice of that party having access and inspection rights to the non-party’s documents”. That comment is based on Schlumberger Holdings Ltd v Electromagnetic Geoservices [2008] EWHC 56 (Pat), a case which was concerned with the position of a subsidiary company vis a vis other companies in the group.

Although some commentators consider the CPR has not made any significant practical difference to the concept of “control” and the powers of the court, Matthews and Malek at 5.47 state that the new rules “have made inroads” on the principles established under the old RSC. They refer to CPR 18.1(1)(b), which gives the court power to order a party to “give additional information in relation to” any matter in dispute in the proceedings, and to CPR 35.9, which empowers the court to direct that a party which has access to information which is not reasonably available to another party to provide the information. I do not consider that CPR 35.9 is relevant here. Part 35 is concerned with experts and assessors, and although 35.9 is not expressly stated to be limited to information needed for instructing an expert, in the light of its context I consider that it is so confined. (The commentary in the White Book at 35.9.1 is only concerned with information from experts.) As to Part 18, although Matthews and Malek state that the CPR have made inroads into the principles established in cases such as Lonrho v Shell [1980] 1 WLR 627 and the Dubai Bank case, all they say is that “it may be that, by analogy with the old case law on interrogatories, a party can in effect be obliged to make reasonable inquiries, e.g. of servants or agents…” (emphasis added).

Notwithstanding my inclination, I am not in a position to make an order at this stage. First, there is the issue of “control”. There is little evidence about the access the claimant has had to the material on its advisers’ servers. Secondly, the width of the application originally made appears to me to involve an exercise that would be greatly disproportionate and costly. Even when narrowed, what is envisaged is potentially more extensive than the claimant’s application in respect of the “loose” documents on the defendant’s server. It is also of some significance that, while the defendant reserved its position in May 2011, this application was not made until almost two months after the hearing before Simon J, and almost three months after the claimant resisted the request for such material on grounds of relevance in December 2011. The pre-trial timetable is now tight for the reasons I have given and, while Mr Cawson stated that the defendant was content for this disclosure exercise to be conducted in parallel with the exchange of witness statements, the scope of the exercise, even when narrowed, would, in my judgment, risk imperiling the trial timetable.

Notwithstanding this conclusion, a number of considerations suggest that it would be in the mutual interests of the parties to enter into discussions about how the material sought by the defendant could be provided in a proportionate way. The first factor is that it appears that, when the defendant requested hard copies of notes taken by the claimant’s advisers at meetings they attended, the claimant obtained and disclosed such notes. Even if the Schlumberger case is not on all fours, this may show a practice of the claimant having access and inspection rights to such material. In Schlumberger’s case, Floyd J made it clear (at [21]) that his decision did “not turn in any way on the existence of a common corporate structure” but on the fact that it appeared from the evidence that the party to the litigation “has already enjoyed, and continues to enjoy, the co-operation and consent of the third party to inspect his documents and take copies, and has already produced a list of documents based on the consent that has been given”. See also North Shore Ventures v Anstead Holdings Inc [2012] EWCA Civ 11, where Toulson LJ stated that it was possible to deduce from the material before the court that trustees who had the documents would take whatever steps the litigant-beneficiary wished and took a broad view of “right to possession” in stating (at [40]) that a party does not only have control of a document if the case falls within paragraphs (a) to (c) of CPR 31.8(2). Secondly, I have indicated that the material is, for the reasons given by Mr Cawson, relevant to the issues that will have to be determined at trial. Thirdly, in principle it is possible for the defendant to seek a third-party disclosure order.

I turn to the defendant’s Part 18 request. The second part of this request is whether there is a claim in conspiracy. During the hearing Mr Hollander stated that there is no claim in conspiracy at present, that, if one is advanced, it will be properly pleaded, and that this will be confirmed in writing. There is accordingly no need for an order in relation to this matter. There is also no need for an order in relation to the question whether the claimant, in addition to the examples set out in sub-paragraphs 63(1) – (5) of the Particulars of Claim, relied on other facts and matters in support of the its assertion that the defendant did not assess the claimant’s bid in a fair, non-discriminatory and transparent manner. Mr Hollander stated during the hearing that, notwithstanding the words “for example” which introduced the five matters specifically pleaded and set out in sub-paragraphs 63(1) – (5), there are in fact no other examples, and that nothing is relied on beyond the defendant’s three principal scoring documents provided to the Project Board on 2 October 2008 and the Director of City Development’s report for the Executive Board on 5 November 2008. It is unfortunate that these simple replies could not have been given before the hearing.

That leaves two questions. The first is to how the defendant’s intended use and meaning of the processes of “normalisation” and “risk adjustment” were notified and explained to the claimant. The second is how the defendant’s actual use of the processes and the meaning in fact given to them differed from that explanation.

The claimant does not maintain that the defendant is not entitled to this information. But Mr Hollander submitted that this matter is sufficiently pleaded. He maintained that it is clear that what is alleged is that the claimant was told that its bid would be marked against a notional benchmark PSC comparator, but that in fact its bid was assessed against an actual competitor, the defendant itself, about which the claimant did not know, and that different adjustments were applied to its own position. The claimant’s position is that it is not opposed in principle to answering the defendant’s further questions, but considers that the issues surrounding scoring are “so extensive and intricate” that it would be clearer and more comprehensive for the claimant to do so in a full statement from Mr Aspinall on this issue than in a response to a Part 18 request.

Since, in relation to the matters on which no order is being made, it was not contended that the defendant was not entitled to the information, and since, as long ago as 23 February, the claimant’s solicitors said that they did not object to providing answers to the requests but suggested that it would be premature to do so while disclosure remained outstanding, and more recently have sought to defer the matter to a witness statement, it is understandable that the defendant made its application. Between the last week of February and 12 March, the claimant’s solicitors gave the impression that the replies would be forthcoming in the near future. The allegation that the defendant was not conducting the competition in a fair and non-discriminatory way is at the heart of the dispute between the parties and, particularly in view of the allegation of fraud, it is important to the defendant in preparing its witness statements to know with some precision how the case is going to be put against it.

While it will certainly be helpful to the defendant for the way in which the case on different scoring is put to be dealt with in a witness statement, statements are to be exchanged and the defendant is at present faced with preparing its own witness statements. Mr Hollander stated that the claimant will be relying on the defendant’s public documents and the difference between what they say the defendant said and what it in fact did in this part of its case. I have concluded that the defendant is entitled to know which documents and which paragraphs are to be relied on, and to this extent I grant this part of the defendant’s Part 18 application. As in relation to the staged process in relation to the “loose” documents on the defendant’s server (see [24]), I will hear submissions as to dates.

I turn to the claimant’s application for specific discovery and for an order that the defendant provide an affidavit explaining the document preservation measures it put in place, the process by which documents or data came to be deleted, and the steps taken by it to recover deleted items. The application for an affidavit is the only part of the claimant’s application that is contentious, although there were also differences as to the timetable for compliance with Simon J’s order in respect of the deleted data and the exercise to identify and recover missing laptops and PCs and interrogate them.

I have concluded that no order, or more accurately no further order, is required in respect of additional custodians and keywords. It is agreed that Maureen Taylor and, in respect of emails only, Joanne Wells, are to be added to the list of custodians. It is also agreed that “Quarry Hill” and “Stourton North” will be added to the keywords. The defendant does not object in principle to “Sovereign Street” provided the problem thrown out by the fact that one of the relevant offices is located in that street so that the words appear on every document, can be overcome. It does not appear that the defendant objects to “Sovereign St” on this ground.

As far as deleted and overwritten data, and missing PCs and laptops, are concerned, paragraph 2.1 of Simon J’s order required the defendant to conduct a reasonable search of the repositories of the named custodians “for any deleted electronic documents” and “to take reasonable steps to retrieve and/or restore such documents”. Paragraph 2.1.2 required the defendant to embark on a process of retrieval or restoration by 17 February.

In relation to overwritten data. Cobbetts provided a list of overwritten files for one custodian, which is some 180 pages long, with its letter dated 27 April, and asked whether the claimant wished them to supply a similar list for the other custodians. The claimant has indicated that it does so wish and does not seek an order in respect of this.

The discussions between the parties resulted in an agreed timetable which reflected the need to upgrade the defendant’s server in order to enable the searches to be undertaken: see the letters from Walker Morris dated 26 March and 4 April 2012, and those from Cobbetts dated 16 and 30 March, and 27 April 2012. Cobbetts’ most recent letter agreed to search deleted data by reference to the key words and anticipated doing so within 21 days. That period ends on 18 May 2012.

The claimant, understandably concerned because witness statements are due, seeks an order that the defendant do so by that date. The defendant has asked that the deadline for “deleted data exercise” be extended to 4:00pm on Monday 21 May, with documents provided seven days later. As far as the work in connection with the PCs and laptops is concerned, Mr Cawson indicated in a schedule of issues provided during the hearing that the process of identifying the PCs and laptops used by the named custodian is unlikely to be completed or taken as far as it can be until June. After the hearing a more precise time, 8 June with documents provided seven days thereafter, was given for data recovered from PCs and laptops which have already been found. In respect of data to be recovered from PCs and laptops which are yet to be identified, the defendant has stated disclosure ought to be possible by 22 June 2012 with provision of documents seven days later.

In these circumstances, and in view of the potential impact on the timetable and the time that has passed since the hearing before Simon J in January, it is appropriate for an order to be made that the search of deleted data be done as soon as is reasonably practicable, and in any event not later than 8 June in the case of the four custodians’ computers that the defendant has already recovered. In respect of PCs and laptops that have not been located, the defendant should disclose the documents resulting from the searches on its network using the profiles of the custodians of the missing PCs and laptops as soon as reasonably practicable and in any event not later than 22 June.

Paragraph 2.4 of Simon J’s order requires the defendant to produce a witness statement dealing with the steps it has taken to search for, identify and retrieve and/or restore electronic documents. It is not necessary for there to be a disclosure affidavit. The defendant does not oppose dealing in the witness statement with the matters set out in paragraphs 6.1.1 and 6.1.3 of the draft order. They are respectively what document preservation measures it put in place, including when such measures were first put in place and which individuals within its organisation and those of its project advisers were subject to such obligations, and the steps taken both before and after Simon J’s order to recover any deleted data or documents. The witness statement can also deal with the position of the data room, the 2008 backup tape, and the 153 boxes at BDO which have recently been found and are being searched for daybooks. The matters on which the claimant relies as having emerged subsequent to Simon J’s order arose because of the discussions between the solicitors and the forensic experts pursuant to Simon J’s order, and do not, in my judgment, justify an affidavit in the terms sought by the claimant.

The remaining items in the defendant’s application for specific disclosure are not contentious. The defendant is entitled to inspection of all the documents mentioned in any statement of case that have not already been disclosed, and documents relating to the claimant’s case on quantum. The claimant’s solicitors had written stating that they expected to make a substantive response to the requests for specific and quantum related documents by 23 March 2012, but did not. Since the defendant’s application has been issued, documents have been provided on 3 and 24 April, the latter the manuscript notes by the claimant’s advisers of attendance at various meetings to which I have referred. The documents so provided concern not only quantum, but also liability.

The defendant has raised three issues. The first is that parts of a number of the documents have been redacted. The claimant has agreed to explain, in relation to each document and each redaction, the reason for it. It is necessary to determine a date by which this is to be done if it cannot be done forthwith. The defendant should, within a short time thereafter, explain any objection it has to any of the redactions. The claimant should review its position in the light of such explanation. The timetable should be a tight one. Similarly, a number of the documents appear incomplete, that is they appear to have missing pages. The claimant should check whether pages are missing from the documents identified in paragraph 18 of Mr Hainey’s 12^th witness statement and either provide them or explain why it is not possible to do so.

In relation to quantum issues, one matter raised by the defendant concerns the acquisition of the “LA Bowl” site by the claimant. The defendant maintains that the acquisition of this site and information about it is relevant to the pleaded expressed desire on the part of the claimant and/or its controllers to divest themselves of assets. The claimant has agreed to provide the purchase “bible” of conveyancing documents, but resisted disclosing documents about the financing of the transaction on the grounds that such material is not relevant. I have concluded that, subject to issues of third-party confidentiality and privilege, documents concerning any application to finance the acquisition are relevant. The term “LA Bowl” is one of the keywords the claimant was ordered to include in its standard disclosure searches by Master Eastman at the CMC.

In the light of the post-hearing emails, it seems unlikely that the parties will be able to agree an order reflecting the decisions I have made, the relevant timetable and consequential directions. Failing such agreement, I will hear submissions when this judgment is handed down.