Weblinks Ltd v Cable and Wireless (west Indies) Ltd et Al

• Jurisdiction: Anguilla
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Judge: Edwards J
• Judgment Date: 05 September 2002
• Neutral Citation: AI 2002 HC 9
• Docket Number: AXAHCV 0014 of 2001
• Date: 05 September 2002

High Court

Edwards, J.

AXAHCV 0014 of 2001

Weblinks Limited

and

Cable and Wireless (West Indies) Limited et al

Appearances:

Mr. H. Wiggins and Miss D. John-Woodruffe for claimant.

Mr. D. Riegel QC and Mr. Timothy Clarke for 1st defendant.

Mrs. C. Petty-Barrett for 2nd defendant

Practice and Procedure - Disclosure request — Whether the first defendant's objection to the disclosure request was justified — Part 28 of the Civil Procedure Rules 2000 — Claimant must show that the documents were relevant and production was necessary to deal fairly with the issues in pleading — First defendant to carry out search for specified documents.

Edwards J

1 By a notice of Application filed on the 14th May, 2002, the claimant requested certain orders including that at paragraph 2 of the Application for the first defendant to “comply with the directions in paragraphs (1) and (2) of the Order of this Honourable Court dated 26th November, 2001 in particular to provide full copies to the claimant of:

• (i) all documents falling within the categories of documents specified in Paragraphs 4.2 and 4.3 and 4.4 of the claimant's request for disclosure served on the first defendant on 10th December, 2001 (“the Disclosure Request”)

• (ii) all documents falling within the categories of documents specified in paragraph 5 of the Disclosure Request, but limited to the OECS.

• (iii) all documents falling within the categories of documents specified in paragraph 6 of the Disclosure Request but limited to the OECS.

• (iv) all documents falling within the categories of documents specified in paragraph 7 of the Disclosure Request (including, without prejudice to the generality of the foregoing, the final version of a paper, written by one Estelle Harris, entitled “Wireless Island”) but limited to the OECS;

• (v) all copies in its possession of the monthly competition newsletter for the region as required by paragraph 8 of the Disclosure Request;

• (vi) all documents falling within the categories of documents specified in paragraph 9 of the Disclosure Request;

• (vii) all documents falling within the categories of documents specified in paragraph 10 of the Disclosure Request, but limited to Anguilla and the OECS;

• (viii) all documents falling within the categories of documents specified in paragraphs 11 and 12 of the Disclosure Request, but limited to the last six years;

• (ix) all documents falling within the categories of documents specified in paragraph 13 of the Disclosure Request in respect of or relevant to all OECS jurisdictions;

• (x) all documents falling within the categories of documents specified in paragraph 14 of the Disclosure Request;

• (xi) all documents falling within the category of documents specified in paragraph 15 of the Disclosure Request affecting Weblinks, including any such documents withheld hitherto pursuant to the objections to this request raised by the first defendant in its response to the claimant's Request for Specific Disclosure;

• (xii) all documents falling within the categories of documents specified in paragraph 16 of the Disclosure Request;

• (xiii) all documents falling within the categories of documents specified in paragraph 17 of the Disclosure Request, but limited to documentation in support of Mr. Hodge's statement on behalf of the first defendant to demonstrate that he had solid evidence to support it”

2 The Pre-trial Review Order of Madam Justice d'Auvergne made on the 5th December, 2001 required that:–

• “1. Each party by 10th December, 2001 serve on all other parties, a list setting out:

  • (a) any and all documents further to those already exhibited to any affidavit served herein which the party serving intends to rely upon at the trial herein; and

  • (b) any and all documents or categories of documents in respect of which the party serving wishes any other party to give disclosure;

  • (c) and all documents, including documents already filed, are to be included in a chronological bundle of documents.

• 2. By 14th January, 2002 the parties serve on all other parties (subject to agreement to pay the reasonable copying charges thereof) copies of all documents falling under 1 (b), where the party requested to give disclosure has by that date indicated an objection to disclosure;

• 3. The parties have liberty to file additional affidavits on behalf of witnesses of fact, any such affidavit to be limited to matters arising out of the documents disclosed pursuant to (1) and (2) above, within 28 days of the completion of disclosure;

• 4. The parties have liberty to file Supplemental Experts' Reports, in reply to the filed Experts' Reports and arising from the documents disclosed pursuant to (1) and (2) above, within 14 days of (3) above;”

3 Pursuant to this Order, the parties filed and served their List of Documents and on the 10th December, 2001, the claimant filed a List of Documents for discovery directed at the first defendant which is referred to in the Application as “The Disclosure Request.”

4 The first defendant's response to the claimant's Request for Specific Disclosure was filed and served on the claimant's Solicitors on the 28th January, 2002. Thereafter, there were several exchanges of correspondence between the legal representatives for these two parties; and the first defendant's objections to the Disclosure Request of claimant remained unresolved. Following, on the trial dates being aborted because of the unavailability of claimant's counsel, the trial was rescheduled by the court to commence on the 16th November, 2002.

5 The court now has to decide whether first defendant's objections to the Disclosure Requests of claimant are justified. I shall now deal with the law regarding the discovery of such documents, and then I will deal with the responses from the first defendant, the affidavit evidence filed in support of and against this Application, and the submissions of Mr. Wiggin and QC Mr. Riegel.

THE LAW

6 Part 28 of the CPR 2000 deals With Disclosure and Inspection of “directly relevant” documents. Under Part 28.1 (4) a document is directly relevant if:

• (a) the party with control of the document intends to rely on it;

• (b) it tends to adversely affect that party's case; or

• (c) it tends to support another party's case.

7 Under Part 28.4:– “If a party is required by any direction of the court to give standard disclosure, that party must disclose all documents which are directly relevant to the matters in question in the proceedings.”

This is regarded as Standard Disclosure.

8 It appears from the Order of Justice d' Auvergne that Standard Disclosure was required of the parties, and that the Disclosure Request of claimant's Solicitors was made under paragraph 1(b) of the Order.

9 Part 28.14 (1) of the CPR 2000 provides that:– “A person who claims a right to withhold disclosure on inspection of a document must:

• (a) make such a claim for the document; and

• (b) state the grounds on which such a right is claimed; in the list or otherwise in writing to the person wishing to inspect the document.”

10 Part 28.14 (5) provides that a person who does not agree with a claim of right to withhold inspection or disclosure of a document may apply to the court for an order that the document be disclosed or made available for inspection under Part 28.14 (6). On hearing such an application the court must make an order that the document be disclosed unless it is satisfied that there is a right to withhold disclosure.

11 Part 28.5 deals with Specific Disclosure. Part 28.5 (4) states that:– “An application for specific disclosure may identify documents:–

• (a) by describing the class to which they belong; or

• (b) in any other manner.”

12 Part 28.6 deals with the criteria for ordering specific disclosure.

• (1) When deciding whether to make an order for specific disclosure; the court must consider whether specific disclosure is necessary in order to dispose fairly of the claim or to save costs.

• (2) The court must have regard to:–

  • (a) the likely benefits of specific disclosure; and

  • (b) the likely cost of specific disclosure; and

  • (c) whether it is satisfied that the financial resources of the party against whom the order would be made are likely to be sufficient to enable that party to comply with any such order.”

13 The nature of the Order for Specific Disclosure is stipulated in Part 28.5 of the CPR 2000. It provides in Part 28.5 (1):– “An Order for Specific Disclosure is an order that a party must do one or more of the following things:–

• (a) disclose documents or classes of documents specked in the order;

• (b) carry out a search for documents to the extent stated in the order;

• (c) disclose any document located as a result of that search

• (5) An Order for Specific Disclosure may require disclosure only of documents which are directly relevant to one or more matters in issue in the proceedings.”

14 It would seem from the above rules that the present Application has been made pursuant to Part 28.5 (3) and (4) and Part 28.14 (5). The Court must therefore apply the criteria mentioned in Part 28.6 (1) and (2) and Part 28.5 (5) and Part 28.14 (6).

15 It appears from the definition of “directly relevant” in Part 28.1 (4) that a “directly relevant document” is not limited to documents which would be admissible in evidence, nor to those that would prove or disprove any matters in issue (Part 28.5 (5)) in the proceedings; since any document containing information tending to support or adversely affecting a party's case is discoverable.

16 In the case 0. Company v. M. Company [1996] 2 Lloyds Rep. 347, Colman, J. focused on what constituted “the party's case.” Both Solicitor Mr. Wiggin and QC Mr. Riegel cited and relied on the dicta of Colman, J. where he stated:

“Whether a class of documents as a whole is relevant for discovery purposes must depend upon what information it is...