Kerry Underwood

DISCLOSURE CUT BY 90% BY COMMERCIAL COURT

with 3 comments


In Bank Mellat v Her Majesty’s Treasury [2017] EWHC 2409 (Comm)

The Commercial Court, part of the High Court, considered the appropriate order for disclosure in respect of “affected transactions” identified by the claimant bank.

At an earlier hearing it was thought that the number of “affected transactions” might run into tens of thousands, with the idea that disclosure should only be given in respect of limited, agreed sample transactions.

A schedule subsequently prepared by the claimants identified 2,500 affected transactions.

Mr Justice Males noted that the parties’ expert accountants had been unable to agree an approach to sampling.

The defendants argued that the claimant should be required to give disclosure on all of the transactions it relied on, so that the claim could be “properly tested”, whilst the claimant bank pointed to the “extremely onerous and expensive task” that that would involve, possibly taking over a year, and costing at least £2 million.

The claimant proposed that there should be disclosure in respect of 10% of the transactions in the schedule, selected at random.

Mr Justice Males concluded that, due to the inevitable impact of ordering full disclosure, the sample approach was one that should be attempted.

He noted, though, that this was a very substantial claim and, if the transactions were to be relied on, reliable evidence had to be given.

Therefore, he made the order for sample disclosure on that basis that, once the material had been disclosed and considered, further disclosure might be required.

This is yet another example of the court restricting, or criticising, the volume of documents in litigation, with parties sticking to the outdated concept of standard disclosure, which will shortly be scrapped for virtually all cases worth less than £100,000.

Due to concerns over the huge costs generated by the disclosure process, a working group chaired by Lady Justice Gloster is considering possible procedural reforms in all cases.

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Written by kerryunderwood

October 16, 2017 at 8:19 am

Posted in Uncategorized

3 Responses

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  1. […] by Kerry Underwood, is headed Disclosure cut by 90% by Commercial Court. The headline puts us on notice of some fierce court control. The other, called Electric Reams, is […]

  2. When will the actual trail begin? Does bank Mellat have any chance at all to win the case? And if yes when

    Alan

    November 20, 2017 at 3:34 pm

    • Alan

      I do not know. I do not have any personal involvement in the case and was simply reporting the decision in relation to disclosure.

      Kerry

      kerryunderwood

      November 21, 2017 at 3:52 pm


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