Whodunnit: important reminders about disclosure duties for clients and their lawyers

Two recent decisions of the High Court, in actions involving high-profile parties, shine a spotlight on the duties of both parties and their legal representatives when it comes to disclosure.

Avoiding own goals: Vardy v Rooney and another

The case concerns the much-publicised libel claim brought by Mrs Rebekah Vardy against Mrs Coleen Rooney, involving a post published by Mrs Rooney on her social media accounts accusing Mrs Vardy of being responsible for leaking false stories about Mrs Rooney’s private life, which saw Mrs Rooney dubbed ‘Wagatha Christie’.

In the latest round of the dispute, a number of procedural applications were before the court. Among these were the following:

- The claimant sought an order for search and disclosure in relation to six identified custodians and the defendant herself. The claimant submitted that the disclosure exercise had been inadequate because the defendant’s solicitors had failed to comply with the principles set out in CMCS Common Market Commercial Services AVV v Taylor, which required them to take possession of a client’s documents and decide which are relevant and disclosable, rather than leaving the task to the client.

The judge held that the way in which the defendant’s solicitors conducted the disclosure exercise, in particular asking the individuals to search by reference to a much more limited number of search terms than those agreed with the claimant, and not overseeing the searches other than in the case of one individual, could fairly be criticised. However, he considered that the order sought by the claimant was unnecessary and disproportionate. Despite the ‘custodian’ label that had been applied, it was reasonably apparent that the defendant had not named the individuals as custodians on the basis that she had control over their documents, but rather because they were individuals from whom she considered it appropriate to seek disclosure of documents. Although the judge accepted that there was room for criticism of the approach that had been taken, he was not persuaded that there was any merit in making the orders sought.

- The defendant meanwhile made a specific disclosure application in relation to range of documents. She relied on among other matters the following: documents that she said had been improperly redacted (since, due to a software error, her representatives were able to see the material purportedly redacted); the absence of WhatsApp communications with the claimant’s agent and the explanation provided by the claimant – that they were lost due to her computer crashing – being ‘somewhat surprising’ in the words of her own digital forensic expert; and the agent’s mobile phone apparently having been lost on a boat trip when the boat hit a wave. The defendant questioned the veracity of these accounts.

The judge held that, where in the midst of a WhatsApp account that appeared on its face to concern the defendant, the claimant stated that she would ‘love to leak those stories’, it was not open to the claimant’s representatives to make the determination, on the basis of their client’s instructions, that she was not referring to stories about the defendant. That was a matter for trial. The judge appreciated that a party’s representatives will often need to seek their client’s instructions as to what certain information relates to when determining relevance. But that does not mean that information can be withheld on the basis of the client’s account if it is plain on the face of the document that there is a credible alternative interpretation which would support the opposing party’s case and on which they would be bound to rely if the document is disclosed. The judge ordered that the claimant’s WhatsApp communications with the agent during the relevant period should be manually reviewed, albeit the circumstances did not warrant (as the defendant contended) a train of enquiry order.

Shape of you(r duties): Sheeran and others v Chokri and others

These proceedings concern a copyright action relating to the song “Shape of You”, with a declaration brought by Mr Sheeran and others that they have not infringed any copyright of the defendants in a song called “Oh Why”.

The proceedings are subject to the Disclosure Pilot contained in Practice Direction 51U. The defendants made an application under paragraph 17, submitting that there were shortcomings with the claimants’ disclosure. The court noted that there must be more than just a general suspicion that there may have been a shortcoming; speculation is not enough. Something is needed to show that there is a likelihood (as opposed to a possibility) of further relevant documents existing.

The court was satisfied that a number of problems had come to light with the claimants’ disclosure, including diary entries and the format in which some music files from the recording studios in question were provided, observing that there was a certain stubbornness and awkwardness on the part of the claimants when it came to the latter.

Of general significance for practitioners, however, are the court’s comments regarding the extent to which the claimants, and in particular Mr Sheeran, had engaged with the disclosure process themselves. The court was informed that Mr Sheeran’s disclosure had been undertaken not by him but by his manager and it noted that, while this was not necessarily a sign of impropriety, it was certainly a matter of concern.

The court ordered of its own motion that Mr Sheeran and the third claimant each make a witness statement stating that they had personally satisfied themselves that their disclosure obligations had been met.

The judge commented: “I appreciate that both these gentlemen are very busy people, with recording and song-writing careers and performing careers to pursue, but they did initiate these proceedings and it is important that people in their position take responsibility for their own disclosure.” (Paragraph 30, judgment.)

Comment

Taken together, the decisions highlight the importance of both clients and their legal representatives properly taking control of the disclosure exercise. One feature of the Disclosure Pilot has been to bring to the fore, and to codify to a greater degree, the duties on both when it comes to disclosure. These judgments of the High Court underline the court’s expectations and demonstrate the way in which either the client or the legal representatives fell short of what is required of them when discharging their duties.

For practitioners, the message is clear: ensure your client personally engages with their disclosure exercise, however busy they may be (after all, it is their disclosure) but at the same time exercise proper supervision and control over the exercise to ensure that a robust process is followed and your own duties are met.

An original version of this article was published on 20 April 2022 by Thomson Reuters Practical Law