Gower Chemicals Group Litigation v Gower Chemicals
17 April 2008
[2008] EWHC 735 (QB)
Citation: [2008] EWHC 735 (QB)
Facts:
The receiving party sought at detailed assessment to recover the costs of expert reports which had not been disclosed in the underlying litigation and were privileged. They appealed the order of a Costs Master which required them, pursuant to PD 40.14, to elect either to disclose the reports to the paying party or to decline disclosure and rely on other evidence. The receiving party argued that the Costs Master had failed to (1) identify a genuine issue which could only be resolved by reliance on the contents of the undisclosed reports; (2) consider the contents of the documents himself in order to determine whether they were of sufficient importance to be taken into account when determining their recoverability (3) consider whether it was both reasonable, just and proportionate to put the receiving party to their election; (4) balance the interests of the parties fairly by wrongly accepting that the receiving party should be put to their election when a paying party refused to deal with the matter on an informal basis.
Held:
(1) The fact that the reports had never been used or disclosed in the underlying litigation was sufficient to raise a "genuine" or "real and relevant" issue.
(2) A real and relevant issue having arisen, there was no need for the Master to inspect the documents himself before putting the receiving party to their election. A judge would ordinarily be reluctant to look at potentially important documents which he might subsequently be required to put out of his mind if the receiving party was put to their election and chose not disclose.
(3) Judges always endeavoured to make discretionary orders which were reasonable, just and proportionate. The failure of the Master to state expressly that he had considered these concepts did not mean that had not done so.
(4) A paying party could not invariably and automatically compel the putting of the receiving party to his election simply by declining to deal with the matter on the usual informal basis. However, that had not occurred here. The reports were potentially of substantial importance and a clear issue had arisen which justified the paying party's request for their disclosure.