Far reaching requests for disclosure - A warning
The High Court of England & Wales recently considered the scope of disclosure required to be undertaken by a party in the case of The Federal Deposit Insurance Corporation v Barclays Bank Plc.
The proceedings commenced in 2017 and concern a claim against, among others, a number of defendant banks relating to the alleged collusive suppression of the USD LIBOR rate. In this interlocutory hearing, the claimant sought further disclosure from the defendant banks including transactional data relating to alleged LIBOR manipulation as well as further information from the defendant banks to assist the claimant in making additional more specific and focused disclosure requests.
In finding for the defendants, Miles J made the following helpful remarks with regard to the parties’ obligations relating to disclosure:
- The claimant already had a very large quantity of underlying documents from which it was able to discern information about the defendant banks and it had access to those documents for some years.
- Given the claimant had a large bank of knowledge accumulated through its analysis of that large volume of already disclosed documents, the claimant’s reliance on Coll v Google  CAT 72 (in which the tribunal made orders for the defendants to give further information about the manner in which the disclosure had been given) was not persuasive.
- There was little focused evidential support for many of the claimant’s requests for certain transactional data and certain categories of documents sought by the claimant were “little more than a wish list”.
- There was no evidence to suggest that the defendants would not properly co-operate in relation to the claimant’s further requests for disclosure.
- The information sought by the claimant in relation to certain transactional data was likely to be burdensome for the defendants to provide.
- Miles J concluded his judgment by reinforcing the Court’s expectation and requirement that there be a high measure of cooperation between the parties in seeking to resolve disclosure issues.
The judgment offers some helpful guidance as to what the Court will consider when analysing parties’ requests for disclosure and also highlights the importance of the duty of proper co-operation and engagement between the parties in accordance with the Overriding Objective.