Expert-led disclosure in the CAT the exception not the rule

13 Jan 2025

The Competition Appeal Tribunal (Hodge Malek K.C.) has handed down judgment on an application in the Trucks 2nd Wave Proceedings in which it had to consider the appropriate approach to requests for information/disclosure in proceedings which are subject to the type of “expert-led” disclosure process being used in those proceedings when specific claims between certain defendants and certain claimants have settled. The application was brought by a subset of claimants against the Daimler defendants (with whom those claimants had settled), for data requested by an expert they had instructed. There were two main issues raised by the application: first, whether the application was precluded by the terms of the settlement agreement between those claimants and Daimler; and second, if Daimler could be ordered to provide the data, whether the claimants should pay Daimler’s costs of providing that data.

The Tribunal explains in its judgment that disclosure in the 1st Wave Trucks Proceedings was both a challenge and expensive. It was carried out using a conventional approach of being led by the solicitors for the parties, disclosure reports and lists being prepared, the use of Redfern Schedules, and a flexible approach by the Tribunal in the determination of disclosure application (see [2020] CAT 3, [40] and [2020] CAT 13 at [3]-[11]).  The Tribunal noted that the challenges as to case management and disclosure for Wave 2 are even greater than for Wave 1 given the multiplicity of parties.  That formed the background to the Tribunal’s decision to adopt a novel approach in the 2nd Wave Proceedings of so-called of “expert-led”, rather than lawyer-led, disclosure.

In its Judgment on the application the Tribunal held:  “It must be emphasised that such an expert-led approach is unlikely to be suitable for the majority of cases before the Tribunal. It reflects the general approach of the Tribunal that disclosure must be tailored to the specific needs of individual cases. What may be suitable for a multi-faceted case dominated by expert evidence with numerous parties and issues, may not be suitable for most cases where a more conventional approach may be more productive and hopefully less expensive. In any large-scale litigation before the Tribunal it is important for the Tribunal to have overall control of the disclosure process so that it is confined to what is necessary and proportionate. A ‘no stone unturned’ approach to disclosure is in no one’s interest and costs should not be allowed to escalate unnecessarily in disclosure exercises. Lawyers for the parties using their experience in disclosure exercises are expected to take a major role in managing the process and to cooperate with each other.”

Any disputes lawyers who thought their role in disclosure was potentially under threat in proceedings before the Tribunal will need to think again.  It is clear that the Tribunal considers that the parties’ lawyers play a crucial role in managing the disclosure process and in containing the substantial costs associated with disclosure within proportionate limits.

In dismissing the Claimants’ application the Tribunal found that the application was one that was properly to be characterised as having been made within the claims by the claimants instructing the expert who was seeking the data. On that basis, the application was found to be precluded by the terms of the settlement agreement. The Tribunal also found that, even if the settlement agreement had not precluded the application, it would have been disproportionate to require Daimler to provide the data unless the claimants making the application (i.e. the claimants by whom the expert was instructed) agreed to pay Daimler’s costs of so doing. That was so even though the application was not technically a third party disclosure application. In awarding costs in favour of Daimler the Tribunal considered in assessing the amount of costs payable that both parties had acted reasonably on the application, given there was a bona fide dispute as to the construction of the Settlement Agreement as well as one relating to the nature of the disclosure exercise in itself.   The Tribunal cautioned that it did not want to have a situation whereby disclosure applications like the present are deterred for fear of the size of costs awards.

Alan Bates instructed by Edwin Coe LLP represented the Claimants

Ben Rayment instructed by Macfarlanes represented Daimler.

The Tribunal’s Judgment can be found here

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