A recent High Court decision confirms that the court can order a re-review of disclosure by an independent lawyer, although "strong grounds" are required to justify such an "unusual order": Vilca & 21 Others v Xstrata Limited & another  EWHC 1824.
The court rejected an application for an order requiring the defendants in this case to procure such a re-review. It found that one erroneous (albeit significant) decision to withhold disclosure of a document, which was corrected quickly, did not justify making such an order.
The court did however direct the defendants' solicitors to put forward a plan for a further review of the e-disclosure exercise to ensure that documents falling within certain parameters identified by the decision had not been unjustifiably withheld.
Philip Lis, Associate (Australia) in our disputes team, considers the decision below.
This case arose out of an ongoing dispute between twenty two individuals and two mining companies which, at the time of the events giving rise to the dispute, were subsidiaries of the multinational mining group Xstrata. The essence of the claimants' case is that the defendants breached a duty of care owed to the claimants by, amongst other things, procuring or inciting police violence against them during protests against the defendants' mining operations.
The defendants' solicitors had conduct of the standard disclosure exercise, which was split into several tranches due to its extent. The solicitors initially withheld disclosure of a particular email (the "Email") on grounds including that it was not relevant to the dispute. When the solicitors reviewed the response to the Email in a later tranche of disclosure, they disclosed both the Email and the response, having accepted that both were relevant to the dispute.
The solicitors' initial failure to disclose the Email formed the basis of the claimants' application for an order requiring the defendants to procure a re-review of the disclosure by lawyers independent of the defendants' solicitors. The claimants argued that the Email should have been disclosed regardless of the response, as it was relevant in its own right, and this was therefore evidence that the integrity of the disclosure process had been compromised.
The judge (Foskett J) first considered whether the solicitors had indeed erred in failing to disclose the Email. He found that the Email should have been disclosed regardless of the response. As such, the defendants' initial decision to withhold disclosure of the Email was an error, albeit made in good faith.
Foskett J then went on to consider whether this error suggested that the solicitors had taken too narrow a view of the documents disclosable as part of the exercise. He found that the non-disclosure of the Email and the various arguments put forward by the defendants to justify non-disclosure might indicate that the solicitors took too narrow a view of the parameters within which standard disclosure was required in the case.
Despite his findings, Foskett J rejected the claimants' application for an order requiring a re-review of disclosure by independent lawyers. Citing Teare J in Nolan Family Partnership v Walsh  EWHC 535, Foskett J said he had no doubt that the court could make an order of this kind. However, he emphasised that such an order was "most unusual" and therefore "strong grounds" were required to justify it. He held that on the facts of this case one erroneous (albeit significant) decision to withhold disclosure of a document, which was corrected quickly, did not justify making such an order.
Considering that the solicitors had quickly corrected the error, were of a reputable standing and would therefore be able to put forward a sensible formula for re-review, Foskett J requested the defendants' solicitors to put forward a plan for review of the e-disclosure exercise to date to ensure that further documents within the parameters he had identified had not been unjustifiably withheld. The claimants could comment on that proposed plan within 14 days of receiving it and the judge would consider whether it was sufficient.
Whilst the application was rejected in this case, Foskett J's comments confirm that the court's power to order a re-review of disclosure by independent lawyers is not restricted to the extreme facts of Nolan, where an unrepresented party seems to have completely failed to comply with its standard disclosure obligations.
Foskett J leaves open the question as to what will constitute sufficiently strong grounds to justify such an order although, in dismissing the application in this case, he pointed to the fact that only one error had been made by the solicitors, that it was made in good faith, and that the firm was of a reputable standing.