London & Quadrant Housing Trust and Quadrant Construction Services Ltd vs WPHV Ltd and Others

This case involved an application for disclosure guidance in a complex construction and insurance dispute, focusing on the principles of privilege and the appropriate timing for such applications.

TLDR:

• Claimants sought disclosure guidance on withholding or redacting documents based on privilege.
• The court found the application premature and dismissed it.
• The court emphasized the need for significant differences in approach before seeking disclosure guidance.
• Costs were awarded against the claimants, with a 25% reduction reflecting some case management utility.

The claimants, London & Quadrant Housing Trust and Quadrant Construction Services Ltd, filed an application for disclosure guidance against multiple defendants, including WPHV Ltd and various insurance companies. The claimants sought guidance on whether the defendants should withhold or redact documents on the grounds of confidentiality or privilege.

The application was supported by a statement from Mr. Netherway and elaborated upon in Mr. Thorne's skeleton argument. The claimants argued that the defendants had not provided sufficient explanation for withholding documents and that no privilege could be asserted against them under the Third Parties (Rights against Insurers) Act 2010.

Mrs. Justice Jefford expressed a preliminary view that the application for disclosure guidance was premature. She noted that such applications should be made when there is a significant difference of approach between the parties. In this case, the redactions had not yet been made, and the documents had not been provided in redacted form, making it impossible to determine the significant difference in approach.

The court found that the application went beyond seeking informal guidance and into the realm of determining principles of privilege. Mrs. Justice Jefford emphasized that such determinations should be made through a formal application after a claim to privilege has been asserted.

The court dismissed the application for disclosure guidance, stating that any future issues arising from redacted documents should be the subject of a further application. The claimants' arguments regarding the Third Parties (Rights against Insurers) Act 2010 and waiver of privilege were not determined and could be raised at a future hearing if necessary.

Regarding costs, the court ordered the claimants to bear 75% of the defendants' costs, reflecting the utility of the discussion on privilege issues during the case management conference. The court summarily assessed the costs for various defendants, reducing some amounts deemed excessive.

Legal representatives: Mr. M Thorne and Mr. C Ewing (instructed by Devonshires Solicitors) for the Claimants, Mr. D Khoo (instructed by Simmons & Simmons LLP) for the 2nd to 7th Defendants, Mr. L Wygas (instructed by Cms Cameron Mckenna Nabarro Olswang Llp) for the 8th and 9th Defendants, Mr. T Weitzman KC (instructed by Reynolds Porter Chamberlain LLP) for the 10th to 14th, 16th, and 18th to 22nd Defendants, Mr. N Hext KC (instructed by Weightmans Solicitors LLP) for the 11th and 12th, 14th to 17th and 20th Defendants, Mr. G Hilton (instructed by Shoosmiths LLP) for the 23rd Defendant.

Judicial Panel: Mrs. Justice Jefford

Case Citation Reference: [2024] EWHC 1122 (TCC)