Precedents: specific disclosure; Pre-action disclosure; identifying the transaction; Fulham Leisure; Dore

We have requested a complete copy of the noise surveys and are entitled to disclosure of these. We do not see how The Proposed Defendant would be prejudiced if you sent us complete copies and in any event this is irrelevant.

The relevant principles are found in the Judgments of Mann J in:-

· Fulham Leisure Holdings Ltd v Nicholson Graham & Jones (2006) All ER 599; and in

· Dore & Others v Leicestershire County Council & Another (2010) EWHC 34 (Ch).

These principles are that:

  1. One should identify the ‘transaction’ in respect of which the disclosure

has been made;

  1. That transaction may be identifiable simply from the nature of the disclosure made – for example, advice given by Counsel on a single occasion;
  2. However, it may be apparent from that material, or from other available material, that the transaction is wider than that which is immediately apparent. If it does, then the whole of the wider transaction must be disclosed.
  3. When that has been done, further disclosure will be necessary if that is necessary in order to avoid fairness or misunderstanding of what has been disclosed.

And in Fulham the judgment of Auld LJ in R v Secretary of State for Transport, ex p Factortame (1997) 9 Admin LR 591 was stated:

…where a party is deploying in Court material which would otherwise be privileged, the opposite party and the Court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood….The most obvious application of that principle is in relation to a single document, where a party waives privilege as to part of it but seeks to withhold the rest of it…. Of course, the scope for unfairness depends on the breadth of the matter in issue or their severity if more than one, and on the exact relationship and/or relevance to such issue(s) of the documents respectively disclosed and sought to be withheld. It may or may not be that partial disclosure of documents going to a matter or matters in issue, say in an exchange of correspondence with legal advisors, would be unfair…”

Mann J set out his view after reciting the above:

What those citations show is that it is necessary to bear in mind two concepts. First of all, there is the actual transaction or act in respect of which disclosure is made. In order to identify the transaction, one has to look first at what it is in essence that the waiving party is seeking to disclose. It may be apparent from that alone that what is to be disclosed is obviously a single and complete ‘transaction’ …. Once the transaction has been identified, then those cases show that the whole of the material relevant to the transaction must be disclosed. In my view it is not open to a waiving party say that the transaction is simply what that party has chosen to disclose…. The Court will determine objectively what the real transaction is so that the scope of the waiver can be determined. If only part of the material involved in the transaction has been disclosed then further disclosure will be ordered and it can no longer be resisted on the basis of privilege.

The transaction in the present case is not alleged to be anything greater than complete documents (noise surveys) part of which have been disclosed. The complete noise surveys in our view would form part of the “transaction.” The Proposed Defendant should not be allowed to disclose part of the “transaction” and say “you are not seeing the rest of the hand.”

Please reconsider this matter and obtain instructions to disclose complete noise surveys.

If we do not receive complete copies of the noise surveys by 4pm on 6 September we will seek instructions to issue an Application for Pre-Action Disclosure.

If an Application is issued we will seek the costs of and incidental of the Application. The costs will include profit costs, success fee, VAT and Court fee.

We look forward to hearing from you.

Yours faithfully

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