The claimants applied for an order that the defendants procure "an appropriate re-review of their disclosure", to be carried out by a lawyer who is independent of the defendants' solicitors.
The judge agreed that the defendants had erred, in good faith, when carrying out their e-disclosure exercise by failing initially to disclose a relevant document (although this was remedied later on). Nor did the judge accept the defendants' excuses for the error: "I do not think there is any real mileage in trying to decide whether it was nonetheless within the range of reasonable responses to the question of whether it was disclosable: the reality is that it was plainly disclosable on the basis that it may materially advance the case of the Claimants and/or may materially adversely affect the Defendants' case. The fact that it was not disclosed, and the nature of the various arguments put forward to justify non-disclosure, does give rise to the question of whether too narrow a view is being taken of the parameters within which standard disclosure is required in this case".
The judge also accepted that he did have the power to order a review by another firm of solicitors or by independent counsel (even though that power has not been exercised by a court before). He noted that it would be "most unusual" to make the order and strong grounds would be needed to justify it. Having regard to the fact the error was corrected quickly and the firm in question was of sufficient "standing" to allow the judge to expect it to consider again how to approach the e-disclosure exercise and to put forward a "sensible formula", the judge declined to make the order at this stage. Instead, the solicitors were required to provide a plan within 14 days: "The Claimants may comment on that proposed plan within 14 days of receiving it if they wish and I will consider whether it meets the need for the kind of review I have mentioned."