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MOD’s disclosure failures lead to defence strike out

In Eaglesham v. Ministry of Defence [2016] EWHC 3011 (QB), Laing J had previously made an “unless order” requiring the MOD to comply in full with a previous order made by consent, for the disclosure of specified documents and classes of documents, and to provide this on a “rolling” basis as documents became available for disclosure. This had to be done by a specified deadline; otherwise the MOD’s defence would be struck out and judgment for liability would be entered with damages to be assessed.


The MOD waited until the day before the expiration of the deadline to file the present application for an extension of time (without giving any explanation for the lateness of the application) and for relief against sanctions.…

Lord Justice Jackson reviews how the new disclosure rules are being used

In a lecture on “Disclosure” given on the 10th October 2016 at The Law Society’s Commercial Litigation Conference, Lord Justice Jackson addressed disclosure issues and considered whether more effective use could be made of the “new” rules that have been in place since 2013.  He made a number of important points:

In relation to the “menu” options for disclosure orders in rule 31.6 (7), under paragraph (f), some judges have been making orders along the following lines: by consent each party gives to the other free access to all its documents (other than privileged documents), so that they can pick out whichever ones they want.…

Change of address

As from the 1st October 2016, the Centre for Research into Civil Evidence (CRCE-UK) will be moving from 35 St. Paul’s Square, Birmingham, where we’ve been for the past four years, to new premises at 2, Blossom Road, Erdington, Birmingham, B24 0UD.  The email addresses and phone numbers remain the same.…

Pyrrho and Predictive Coding: Where are the missing bits from the jigsaw?

The decision in Pyrrho Investments Limited v MWB Property Limited and others [2016] EWHC 256 (Ch) leaves one with the impression that the parties had reached consensus on all material matters. But what exactly had been agreed in this case and what exactly did the judge (Master Matthews) actually order?

The judge recited that a case management agreement had been reached, although the terms were not given in the judgment.…

Predictive coding is given approval by the High Court in a landmark decision on it use

Predictive coding (as a form of computer assisted legal review in the context of massive quantities of electronic documents) has been used in a number of e-disclosure cases in the United States and also in the Republic of Ireland (Irish Bank Resolution Corporation Ltd v Quinn [2015] IEHC 175). However, until now, the England and Wales jurisdiction has had no decision expressly authorising its use.…

The Electronic Evidence and E-Disclosure Handbook

With over 600 pages, CRCE-UK launches a major new textbook on E-Disclosure dedicated to lawyers conducting heavy civil litigation cases in the UK.

Written by lawyer, Professor Peter Hibbert, for lawyers (with an Advisory Panel comprising some of the leading names in the field of e-disclosure/e-discovery in the UK and the US), The Electronic Evidence and E-Disclosure Handbook provides guidance for practitioners on how to project manage, seek, preserve, and analyse electronic documents for legal review and for compliance with CPR Part 31 in civil litigation cases in the England & Wales jurisdiction.…

Legal professional privilege (LPP): Recent case on loss of LPP under the “iniquity” exception


Summary: In London Borough of Brent v. Kane [2104] EWHC 4564 (Ch), the local authority was able to obtain an order against the defendants for disclosure of legal advice where it was alleged that the defendant had received property for the purpose of defrauding creditors, notwithstanding that the advice was privileged.…

Adverse inferences: Destruction of data by a non-party

In Ramsey v. Love [2015] EWHC 65 (Ch) the court had to consider whether adverse inferences could be drawn where documents had been destroyed by a person who was not a party to the proceedings and who had not been called as a witness at the trial.


GR, a celebrity restauranteur, applied to the court for a declaration that he was not liable as guarantor to secure performance of covenants by a company tenant.…

Cross-border Litigation: When do US rules on preservation of evidence apply to non- US companies?

Summary: In The Lukenheimer Company v, Tyco Flow Control Pacific Party Ltd., a US District Court judge had to decide at what point did an Australian based company become subject to US common law duty to preserve evidence, in a US law suit in which the Australian company had consented to US jurisdiction.…

Disclosing witness statements to a non-party

Summary: In Barry v. Butler & Ors. [2015] EWHC 447 (QB), the court had to consider in what circumstances a party could disclose the opponent’s witness statements to a non-party prior to the trial.

Witness statements – restrictions on collateral use

Key Rule(s)/cases applied: CPR 32.12(1) provides that “a witness statement may be used only for the purpose of the proceedings in which it is served.” Rule 32.12(2) provides that paragraph (1) does not apply if and to the extent that “(a) the witness gives consent in writing to some other use of it; (b) the court gives permission for some other use; or (c) the witness statement has been put in evidence at a hearing held in public”.…

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