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All England Official Transcripts (1997-2008)

Martin v Triggs Turner Barton and others

Disclosure and inspection of documents - Disclosure against parties to proceedings - Party - Claimant bringing
proceedings against defendants in relation to preparation of late husband's will - Defendants refusing request for
disclosure of estate administration files - Deputy master allowing application for specific disclosure of files in entirety Deputy master giving directions for service of amended particulars of claim notwithstanding absence of draft Defendants appealing - Whether deputy master erring
[2008] EWHC 89 (Ch), (Transcript)

CHANCERY DIVISION
SUSAN PREVEZER QC (sitting as a deputy judge of the High Court)

25 JANUARY 2008

25 JANUARY 2008
This is a signed judgment handed down by the judge, with a direction that no further record or transcript need be made
pursuant to Practice Direction 6.1 to Pt 39 of the Civil Procedure Rules (formerly RSC Ord 59, r (1)(f), Ord 68, r 1). See
Practice Note dated 9 July 1990, [1990] 2 All ER 1024.
H Legge for the Claimant
S Carr QC for the Defendants
Mishcon de Reya; Fishburns

SUSAN PREVEZER QC:

INTRODUCTION
[1] This is an appeal against an Order made by Deputy Master Behrens on 5 June 2007 ("the Order") in proceedings
brought by Dr Alison Martin ("the Claimant") against a firm of solicitors, Triggs Turner Barton and others ("the
Defendants") relating to the preparation of the Will dated 23 December 1999 ("the Will") of the Claimant's husband, Mr
Philip Martin (now deceased), and the administration of Mr Martin's estate. The Third and Fourth Defendants, Ms
Wedderspoon and Mr Caton, were partners in Triggs Turner Barton at the time the Will was prepared, became partners
in the Second Defendant, Triggs Wilkinson Mann ("TWM"), when the two firms amalgamated in July 2000, and are
executors of the Will. The Order was made by Deputy Master Behrens on an application by the Claimant for specific
disclosure dated 30 April 2007 pursuant to CPR Pt 31.12.

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THE PROCEEDINGS
[2] For the purposes of this Judgment, it is necessary to set out very briefly the history of the proceedings and the
nature of the claims made by the Claimant against the Defendants.
[3] Under the terms of the Will, the residue of Mr Martin's estate was held on trust for the Claimant for life and subject
thereto for charity. In addition, the Will included a power to advance capital to the Claimant. As drafted however, that
power provided that only about 9% of residue could be advanced to the Claimant.
[4] The Claimant, who was present during the meeting at which Mr Martin gave instructions to Mr Caton in relation to
the terms of the Will, alleges that the power should have provided that all but about 9% of residue could be advanced to
her. On Mr Martin's death, the Claimant initiated proceedings to rectify the Will, which were compromised between her
and the charities on the basis of a partition of residue. The Claimant then issued proceedings against the Defendants.
[5] The claim against the Defendants falls into two parts. Firstly, the Claimant claims (i) the difference between (a) the
proportion of the estate which she says she would have received had the power been drafted so as to be exercisable over
all but 9% of the residue and (b) the proportion of the estate which she in fact received, plus (ii) the additional costs
which were incurred as a result of her bringing the rectification proceedings. Secondly, the Claimant claims that after
her husband's death, she arranged her affairs as if she was entitled to receive capital from the fund and she brings a
specific claim relating to the events of a meeting between the Claimant and the Third and Fourth Defendants shortly
after her husband's death, during which (the Claimant says), the Third and Fourth Defendants, as trustees of the residue,
gauged the Claimant's wishes as to the investment of the residue. The Claimant's case is that she indicated that she
wished the residue to be invested for capital growth and that it should have been clear to the Third and Fourth
Defendants that the Claimant was under a misapprehension that she had a potential interest in the capital of the fund.
Under this head, the Claimant claims (i) damages for negligence on the basis that the Third and Fourth Defendants
assumed responsibility to advise the Claimant that she had no interest in the capital of the fund, and (ii) damages in
breach of trust against the Third and Fourth Defendants as trustees of the residue on the basis that the decisions they
took in relation to the investment of the fund were improper because they took into account the wishes of the Claimant
as to the investment of the fund in reaching their decision. The Claimant alleges that it should have been obvious to the
Defendants that these wishes were founded on a misapprehension.
[6] The proceedings were commenced by writ on 16 December 2005 and Particulars of Claim were served on 12 April
2006. On 20 June 2006, the Claimant's solicitors, Mishcon de Reya ("Mishcons"), provided the Defendants with a letter
of claim pursuant to the Pre-Action Protocol, particularising the losses alleged to have been suffered by the Claimant. In
that letter, the Claimant made clear that the exact quantification of the claim would be the subject of expert evidence
and that Mishcons had not seen all the necessary documents which they expected would be on the estate administration
files ("the Files") which they invited the Defendants to disclose. It is these Files which formed the subject of the
application before Deputy Master Behrens.
[7] On 18 August 2006, the Defendants served a Defence denying liability in respect of each and every claim.
[8] On 19 October 2006, the Defendants wrote to the Claimant suggesting that that the claim be stayed for one month
to attempt settlement. The Claimant considered this to be premature but indicated that if the Defendants were prepared
to disclose the Files, then the Claimant would reconsider the position. The Files were not disclosed.

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[9] On 20 October 2006, the court, of its own motion, gave directions for the case management of the proceedings,
including a direction for standard disclosure by each party by list on 14 December 2006. That date was thereafter
extended by agreement between the parties to 11 January 2007 and on that date, the parties exchanged Lists. One List
only was filed by the Defendants.
[10] On 29 January 2007, Mishcons wrote acknowledging receipt of the Defendants' List and made a number of
complaints about its content. In particular, Mishcons complained that the List was deficient in that the Defendants had
not disclosed the contents of the Files, which Mishcons contended were clearly relevant to the Claimant's claim.
Mishcons asked to attend the Defendants' offices to inspect the Files and reserved their right to make an application to
the court to obtain them. Mishcons also made the additional point that CPR 31.10(2) required each Defendant to provide
a List of Documents and asked for Lists from the First, Third and Fourth Defendants.
[11] On 13 February 2007, TWM, who were then acting for all four Defendants, responded to Mishcons' complaints.
TWM took a different view on the relevance of the Files and asked Mishcons to direct them to the paragraphs in the
Particulars of Claim which made disclosure of the Files relevant. TWM made clear that they had no objection to
Mishcons attending to inspect the Files subject to their providing this information, but reserved their position on costs.
[12] On 14 February 2007, Fishburns came on the record as solicitors for the Defendants.
[13] On 16 February 2007, Mishcons wrote to Fishburns answering TWM's request for identification of the particular
paragraphs in the Particulars of Claim relied upon to establish the relevance of the Files. They referred in particular to
paras 18, 19, 20, 21, 23 and 27 but contended that the documents contained in the Files were of relevance to all aspects
of the Claimant's claim. They also referred to paras 15 and 16 of the Defence. In addition, Mishcons made the point that
a number of documents already disclosed appeared to have come from the Files and that they were concerned as to
whether the Defendants had carried out their disclosure with sufficient care and in sufficient detail. Mishcons
accordingly repeated their request to be allowed to inspect the Files at the earliest date possible.
[14] On 21 February 2007, Fishburns wrote to Mishcons stating that they were considering the request for disclosure of
the Files and would revert shortly. They agreed that the time for exchange of witness statements should be extended to
29 March 2007 while the issues regarding disclosure remained outstanding.
[15] On 26 February 2007, Mishcons repeated their request for disclosure of the Files, expressing a concern about the
impending revised deadline for exchange of witness statements and the need to consider the contents of these Files
before exchange. On 28 March 2007, Messrs Fishburns responded saying that the issue of whether the Files should be
disclosed remained outstanding and that they intended to serve a draft amended Defence and a request under CPR Pt 18
either on 29 or 30 March 2007. In the circumstances, their view was that Mishcons' request for disclosure of the Files
should be reconsidered after the Claimant had responded to the Pt 18 Request.
[16] Fishburns' letter crossed with a further letter from Mishcons dated 28 March 2007 chasing an answer on the
disclosure of the Files. In their letter, Mishcons threatened to make an application for specific disclosure and inspection
unless they were provided with a further list of documents relating to the contents of the Files within seven days.
[17] On 29 March 2007, Fishburns served their Request under CPR Pt 18 on behalf of the Defendants and again
requested the Claimant to reconsider her request for disclosure of the Files until after the Claimant had responded to the
Request. The Request sought details, inter alia, of the meeting pleaded at para 19 of the Particulars of Claim at which

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the Third and Fourth Defendants were alleged to have advised the Claimant as to her rights under the Will. They also
served a draft Amended Defence and sought Mishcons' consent to the same being filed and served.
[18] Finally, on 5 April 2007, Mishcons wrote to Fishburns stating that they did not see that the Claimant's response to
the Pt 18 Request had any relation to the issue of disclosure of the Files and specifically sought an explanation as to
how the Defendants contended that these Files were not relevant in relation to paras 32, 34 and 40 of the Defendants'
proposed Amended Defence, which made reference to specific meetings and discussions between the Defendants and
the Claimant in relation to the administration of the estate and provided details of the estate assets during the period of
the administration of the estate. In the absence of a prompt and satisfactory response, Mishcons made clear that they
would make an application for specific disclosure without further reference to the Defendants' solicitors.
[19] On 30 April 2007, the Claimant made her application for specific disclosure of the Files, supported by a Witness
Statement made by Mark Keenan, a partner in Mishcons. The Witness Statement simply set out the history outlined
above and exhibited the relevant correspondence. It did not make any additional points on the relevance of the
documents. The hearing of the application was then listed for hearing on Tuesday 5 June 2007.
[20] On Thursday 31 May 2007, Mr Bennett, a partner in Fishburns served a witness statement in opposition to the
Claimant's application and also in support of an application, issued on 31 May 2007, which sought proper replies to the
Defendants' Pt 18 Request, in default of which the striking out of the allegedly inadequately pleaded allegations in the
Particulars of Claim. The latter application was made pursuant to CPR Pt 24, on the grounds that there was no real
prospect of the Claimant succeeding on those parts of the claim. By their application, the Defendants also sought
permission to amend their Defence in accordance with the draft amended Defence already served on the Claimant and
sought to have this application listed at the same time as the Claimant's application for specific disclosure. That part of
Mr Bennett's witness statement in opposition to disclosure of the Files made the following points:

a) That Mr Keenan had not explained the basis on which he maintained that all documents contained in
the Files relevant to the claim had been disclosed, in particular, those relating to the alleged meetings and
discussions between the Claimant and any of the Defendants and the investment of the residue of Mr
Martin's estate;

b) Documents in the Files were disclosable within CPR Pt 31;

c) That disclosure of all the Files would be disproportionate and unnecessarily expensive and;

d) Many of the documents sought were confidential as between the executors (and/or their solicitors) and
the other beneficiaries of the estate.

In short, Mr Bennett contended that the Claimant's insistence upon disclosure of the Files in their entirety, without any
attempt to link categories of documents to elements of the claim, was little more than a fishing expedition. The balance
of Mr Bennett's affidavit concerned the Pt 18 Request and the need for responses to the specific questions raised in
order to narrow the issues between the parties and to properly assess the merits of the claim.
[21] Finally, on 4 June 2007, Mr Keenan made a further witness statement in response to Mr Bennett's statement. In

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this statement, Mr Keenan challenged Mr Bennett's assertion that all relevant documents in the Files had been disclosed
and took issue with Mr Bennett's assertions, allegedly made for the first time, that disclosure was being withheld on
grounds of confidentiality or that full relevant disclosure had been made. Further, Mr Keenan repeated the Claimant's
concerns that relevant documents had been withheld from disclosure, and made reference to three documents in
particular, which had been disclosed by TWM from the Files during the threatened rectification proceedings, but which
did not appear in the List of Documents served by the Defendants; the point being made that the omission of these
documents which were relevant to the issues in the proceedings underlined the need for full disclosure of the Files.
THE HEARING ON 5 JUNE 2007
[22] The matter came before Deputy Master Behrens on 5 June 2007. Each side was represented by experienced
Counsel and had their instructing solicitors in attendance. Full Attendance Notes of the hearing were taken by both
parties' solicitors, which have been provided to the court and although these Notes are not entirely identical, they are
consistent on the material points in issue between the parties on this appeal.
[23] In particular, it appears to be common ground between the parties that:

a) During the course of the hearing, after hearing both Counsel on the Claimant's application for specific
disclosure, the Deputy Master indicated clearly that he intended to order the disclosure of the Files, in
their entirety, subject to the question of privilege, but not confidentiality. The words used by the Deputy
Master, as recorded in the Defendants' note of hearing, in response to the Defendants' Counsel's
argument on confidentiality were:

"You may be right, but with such mistakes [ie, the mistakes in the disclosure of which the Claimant complained], they [the
Claimant and her solicitors] can not be sure. In the circumstances, it is proper for the entire file to be disclosed, subject to privilege
not confidentiality. Consider your response. We will come back at 2.05pm";

b) The Defendant's Counsel considered her response, as requested to do so by the Deputy Master and
came back after the short adjournment with an offer to the Claimants, made on instructions from her
solicitors, to provide inspection of the Files on the basis of which inspection the Claimant would then
prepare a draft list. This offer was then accepted by the Claimant's Counsel, again on instructions, and
the agreed mechanics for this disclosure of the Files were then reflected in paras (1) to (3) of the Order;

c) The Defendant's Counsel agreed to this method of disclosure but expressly reserved the Defendants'
position on costs (p 11 of the Defendants' Note). The Defendants' Counsel did not apply for permission
to appeal or reserve her position on the general principle as to whether disclosure ought to have been
ordered;

d) The Claimant's Counsel indicated at the outset of the hearing that the Claimant wished to amend her
Particulars of Claim but no draft amended Particulars of Claim were produced;

e) Both parties were intent on holding the Trial Date in October 2007 and the directions timetable was

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focused on keeping that date.

[24] The Order made by the Deputy Master at the end of the hearing on 5 June 2007 is self explanatory:

a) He ordered disclosure of the Files in the terms offered by the Defendants and accepted by the
Claimant;

b) He directed service of any amendments to the Particulars of Claim "on which she [the Claimant]
wished to rely by 4pm on 10 July 2007" and the service of any amendments to the Defence on the same
terms by 24 July 2007;

c) He made certain directions for the service of witness statements and gave permission and made
directions for expert evidence to be adduced, with a timetable geared to holding the Trial Date;

d) He adjourned the Claimant's application generally with permission to restore;

e) He made no order on the Defendant's strike out application; and

f) He ordered the Defendant to pay the costs of the Claimant's application assessed at 13,854.98 by 4pm
on 19 June 2007.

[25] In relation to the order for costs, it is clear from the Attendance Notes that this issue was the subject of some
debate before the Deputy Master. The Defendant's Counsel, having reserved her position on costs, made submissions
against an order for costs in the Claimant's favour and the Deputy Master, having heard argument from both sides,
determined the matter in favour of the Claimant and gave a ruling to that effect. That ruling is set out, coincidentally at
pp 15 of both parties' Attendance Notes, and, is as follows:
"The Claimant has been seeking sight of these files for over a year. The Claimant's request is an absolutely standard type of request
to see the Estate files. The Defendants' given grounds for not disclosing the entire contents of these files, is that the Pleadings do
not relate to the Estate Administration Files. This is wholly wrong. It is absolutely standard that a Claimant sees the Estate
Administration Files in these circumstances. The only grounds on which Miss Peacocke has possibly correctly sought to resist the
application is that of confidentiality regarding the other beneficiaries. This ground was only put forward in a Witness Statement of
last week.

During the hearing we have found a way around this in any event. The file will be disclosed informally to the Claimant for her own
inspection and for her to identify the relevant documents. These documents will then be adopted by way of a supplemental list.

It is absolutely plain from the evidence that the disclosure in this matter was handled improperly and mistakes have been made.
This includes obvious mistakes made in filling out the form.

The Claimant was entitled to come here for specific disclosure and has got it. As regards the fact that I have dealt with directions at
this hearing, I do not think that this court has held a case management conference and that specific directions have needed to be
dealt with. The only directions given have been tinkering with the Order of Master Bowles by setting time schedules and dealing
with the unopposed amendment to the Particulars of Claim. The time spent on setting directions during this hearing has been 20 30 minutes as opposed to the three hours dealing with the specific disclosure matter.

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I am therefore awarding costs. This has been contested. Mrs Peacocke has argued that it is not necessary to incur the costs of two
solicitors attending and Counsel on the part of the Claimant. It is, however, clear that both solicitors have had full involvement with
this case all the way through. They have both attended on opponents and others and worked on documents, whether this was the
more expensive Mark Keenan who swore the Witness Statement or his assistant Tamasin Perkins, I do not consider it in any sense
unreasonable for both of them to be present. I do not consider the approach of the Claimant to be heavy handed in this matter. The
Claimant has been reasonable and was entitled to take all the steps she did. I therefore award the Claimant's costs in full in the sum
of 13,844.98"

[26] The award of 13,844.98 was the entirety of the Claimant's costs set out in her schedule of costs. In effect, it can
be said that the Deputy Master made an order for indemnity costs.
PERMISSION TO APPEAL
[27] On 8 October 2007 Lindsay J granted the Defendants permission to appeal the Deputy Master's Order. It appears
from the Order made on that date that Lindsay J granted permission solely on the Grounds of Appeal filed dated 22 June
2007 and the Defendants' witness statements, and without sight of either the Attendance Notes of the parties' instructing
solicitors or the witness statements of Mr Keenan of Mishcons.
[28] I was told by Ms Carr QC, Counsel for the Defendants on this appeal (who did not appear before the Deputy
Master), that when, after permission had been granted by Lindsay J, it was discovered that Mr Keenan's statements had
not been provided to Lindsay J, they were provided to him for his review. However, it is not known whether Lindsay J
revisited his decision in light of these statements. What is clear is that Lindsay J did not see the Attendance Notes of the
hearing prepared by either party's solicitors.
THE APPEAL
[29] I believe that an accurate summary of Ms Carr's core criticisms of the Deputy Master's Order, which were
presented carefully and persuasively, is as follows:

a) The Deputy Master ought not to have made the ruling or given the indication that he was minded to
order specific disclosure of the Files, which ruling/indication led to the consequential agreement between
the parties on the mechanics for such disclosure recorded at paras 1 to 3 of the Order. The Defendant's
Counsel had no choice but to make the offer on the mechanics for disclosure in light of that ruling or
indication and paras 1 to 3 of the Order should not be regarded as an order made by consent.

b) In making the ruling or giving the indication he did, the Deputy Master:

i) ignored the primacy of the "necessity principle" described in CPR para 31.0.3, as the overriding
principle that disclosure should be restricted to what is necessary in an individual case;

ii) ignored the absence of any evidence from the Claimant that all the documents in the Files were
relevant and necessary for the fair determination of the Claimant's claim

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iii) failed to consider any of the criteria set out in the notes to CPR Pt 31 and Practice Direction 31PD;

iv) wrongly rejected the principle that he should consider the issue of confidentiality, despite the clear
guidance given by the House of Lords in Science Research Council v Nasse [1980] AC 1028 at 1065,
[1979] 3 All ER 673, [1979] IRLR 465; and

v) wrongly held that the disclosure of the Files was not disproportionate in time and/or expense.

c) Further, the Deputy Master wrongly held that the Claimant was entitled to all her costs of the
application for disclosure. At the very least, the Deputy Master ought to have deducted at least a third of
the costs on assessment and ought also to have taken account of the fact that a part of the hearing had
been taken up with case management issues.

d) The Deputy Master gave directions which allowed for amendments to be made to the Particulars of
Claim, in circumstances where there was no draft of the proposed amendments made available and no
indication given as to the proposed scope of any such amendments.

e) Finally, the Deputy Master made an order which was both unfair and unworkable, and in giving the
directions he did, he failed to achieve a fair and proportionate way forward.

[30] During the hearing before me and after Mr Legge, Counsel for the Claimant, had made his submissions on the
issue of disclosure, Ms Carr QC accepted that in fact, the effect of paras (1) to (3) of the Order was not to give the
Claimant unrestricted disclosure of the entire Files but only disclosure of the relevant documents in those Files and
subject to the question of privilege. Although Ms Carr QC maintained her complaint that no order at all for specific
disclosure ought to have been made in the circumstances where, inter alia, the issues between the parties on the
Particulars of Claim were unclear and there was an outstanding request by the Defendants for clarification under CPR Pt
18, she accepted that the disclosure exercise reflected in paras (1) to (3) of the Order was, as Mr Legge submitted, "a
significantly watered down" disclosure exercise. This being the case, she submitted that this ought to have been
reflected in the Deputy Master's order for costs, in the sense that it followed that the Claimant had not succeeded in full
on her application.
[31] The way disclosure was intended to operate under the Order is as follows. Paragraph (1) of the Order requires the
Defendants to serve on the Claimant photocopies of the Files save for documents (if any) in respect of which privilege
is claimed, and requires the Defendants to give the Claimant an indication whether privilege has been claimed in respect
of any documents in the Files. What then follows is that the Claimant serves on the Defendant a draft supplemental list
in hard copy and in electronic form indicating the documents from the Files which Mishcons consider to be relevant,
and the Defendants then serve on the Claimant an amended version.
[32] Whilst the procedure provided for under the Order may not be the procedure for specific disclosure anticipated by
the CPR, the offer proposed by the Defendants on instructions and accepted by the Claimant, in fact provided a
pragmatic middle way through the then opposing positions of the parties, focusing on the relevance of the documents
and safeguarding any claim to privilege. The Claimant's position before the Deputy Master was that she did not and
could not know what was in the Files without first having sight of them and that there was reason to believe that the
Defendants had failed to disclose a number of relevant documents in the Files which the Claimant knew existed (in

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particular, the three documents referred to in Mr Keenan's Second Witness statement). The Defendants' position was
that the request for all the documents in the Files was extravagant and ought to have been limited to what was strictly
necessary and relevant to the Claimant's claim and that there was no proper evidence in support of the Claimant's
application. Further, Mr Bennett had provided a witness statement confirming that all documents contained in the Files
that were relevant to the claim had been disclosed (Bennett 1st, para 5) and there were no grounds for questioning this
statement. As I have said, the procedure at para (1) to (3) went some way to meeting both sides' concerns.
THE ORDER
[33] I turn now to the particular issues on the appeal and, in particular, whether this court should interfere with the
Order or any part of the Order made by Deputy Master Behrens.
(i) Paragraphs (1) To (3) Of The Order-Specific Disclosure
[34] I have already outlined above the Defendants' complaints with regard to this part of the Order and their primary
submission that, as a matter of general principle, the Deputy Master ought not to have made any order for specific
disclosure in the circumstances.
[35] The Claimant's case in answer and put forward, carefully and forcefully, by Mr Legge, was that paras (1) to (3) of
the Order in fact reflected the terms of an offer made by Counsel for the Defendants during the course of the hearing
and embodied an agreement, compromising the issue between the parties. For this reason alone, he submitted, the court
should not interfere with these paragraphs of the Order. At the very least, even if there was no contractual agreement
between the parties in relation to the issue, the effect of the Defendants' actions was to submit to an order for disclosure
of the type which was in fact made, which itself would preclude an appeal on the issue. Further and in any event, even if
the court has jurisdiction to overturn the order, the court should be slow to do so, unless the Defendants have suffered
some manifest injustice as a result of the order or the order is plainly wrong, and neither has occurred here.
[36] Having read both sides' Attendance Notes of the hearing and having heard submissions on this narrow issue of the
court's jurisdiction, in my view, the court does have jurisdiction to entertain an appeal on paras (1) to (3) of the Order,
although whether it should in fact interfere with the Deputy Master's Order is a quite separate question.
[37] Although paras (1) to (3) reflect an agreement on the mechanics of disclosure, it is clear from the Attendance
Notes that the orders in these paragraphs are not "consent orders" in the true sense, such as would deprive the court of
its jurisdiction to review them (see Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 All ER 377, [1982] 1 WLR 185).
The Deputy Master gave a clear ruling/indication shortly before the short adjournment in the hearing that he was
intending to order disclosure of the Files. Faced with a pretty clear indication that the Claimant's submissions had been
accepted by the Deputy Master, the Defendants' Counsel proposed a pragmatic solution, namely the provision of the
Files for the Claimant to inspect in the first instance with safeguards as to relevance and privilege.
[38] Further, in his Skeleton Argument and before me, Mr Legge quite properly accepts that the Defendants only
offered to provide the Files for inspection after the Deputy Master had indicated that it was proper for the whole of the
contents of the Files to be disclosed subject to the question of privilege. The offer was then made and accepted, and,
although it is clear that the Deputy Master did not regard himself as having given judgment on the substantive issue, it is
equally clear that the Deputy Master had formed the firm view that the request for disclosure of the Files was
"absolutely standard" and that the Defendants' given grounds for not. disclosing the entire contents of the Files was

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wrong. (Page 15 of the Defendants' Attendance Note). Accordingly, in my view, it would be wrong in the circumstances
for paras (1) to (3) to be regarded as some form of a consent order or a contract between the parties, such as to preclude
the court from exercising its discretion to review them.
[39] However, that said, in my view, the Order embodied in paras (1) to (3) was not an order which the Deputy Master
was wrong to make, in the exercise of his discretion, in the circumstances of this case, and this court should not now
interfere with these paragraphs of the Order.
[40] As Mr Legge submits, under the Practice Direction to CPR Pt 31, at para 5.4, in deciding whether or not to make
an order for specific disclosure, the court will take into account all the circumstances of the case and in particular, the
overriding objective described by Pt 1. But if the court concludes that the party from whom specific disclosure is sought
has failed adequately to comply with the obligations imposed by an order for disclosure (whether by failing to make a
sufficient search for documents or otherwise), the court will usually make such order as is necessary to ensure that those
obligations are properly complied with.
[41] Although Mr Bennett had stated in his witness statement that all relevant documents in the Files had been
disclosed, there was material before the Deputy Master which gave rise to a real and legitimate concern that the
Defendants had not adequately complied with their disclosure obligations to date. The shortcomings in the Defendants'
disclosure exercise, highlighted by Mr Legge before the Deputy Master and before me in para 10 of his skeleton
argument, included:

a) a failure on the part of the Defendants to disclose certain documents (albeit only three were identified)
which were clearly relevant and which were already known to the Claimant as a result of the rectification
proceedings;

b) an apparent failure on the part of the Defendants to carry out an adequate search for documents, in
particular, for documents or internal memoranda relating to the issue of the investment of residue other
than those simply relating to meetings between the Defendants and the Claimant. The search carried out
by the Defendants appeared to have been carried out on an 'event specific' basis, not an issue specific
basis, although, for my part, I have some sympathy with the Defendants on this aspect, given the lack of
particularity in those paragraphs of the Particulars of Claim dealing with the events after Mr Martin's
death;

c) a failure on the part of the Defendants to disclose documents created, for example, by the estate's
stockbrokers, letters to the estate or records of other contact with them, Inheritance Tax forms and the
like;

d) a failure on the part of the Defendants to provide proper disclosure statements, in particular in relation
to searches for electronic documents. The first list prepared by the Defendants suggested that no search
had been undertaken for electronic documents and the further lists provided were unclear on this point.

[42] The issue on this appeal is not whether this court would have taken the same approach to that adopted by the
Deputy Master. The question is whether the Deputy Master was wrong to adopt that approach in all the circumstances in
the exercise of his discretion. As I have indicated, I have some sympathy for the argument that specific disclosure ought

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to have awaited the clarification of the issues between the parties and the service by the Claimant of her intended
Amended Particulars of Claim so that disclosure could properly be limited to the relevant matters in issue between the
parties. However, in the circumstances, I do not think that the Deputy Master was wrong to take the course he did;
indeed in my judgment he was entitled to take the view that the disclosure exercise which had been carried out as at
June 2007 had not been undertaken properly, and was thus entitled to make an order which ensured that the job was
done properly. Further, as I have already said, having indicated his view to the Defendants' Counsel, he then worked
with both sides to find a pragmatic solution to the problem, with a view to meeting the concerns of both parties. In the
end, what was embodied in the Order was, as Mr Legge accepted, an order which was "significantly watered down"
from that sought originally. Accordingly, in my view, the order made by the Deputy Master was an appropriate exercise
of the Deputy Master's case management powers and not an order which this court should interfere with in the
circumstances.
(ii) The Directions For Service Of Amended Pleadings
[43] The Deputy Master ordered the service by the Claimant of any amendments to the Particulars of Claim "on which
she wishes to rely" by 4pm on 10 July 2007 and made a like provision for service of any amended Defence by the
Defendants by 4pm on 24 July 2007. He made these orders, notwithstanding that the Defendants had already served on
the Claimants a substantially amended Defence and a Request under CPR Pt 18 for clarification of particular paragraphs
of the Particulars of Claim and on 31 May 2007, had issued an application to strike out those paragraphs in default of
that clarification.
[44] The Defendants contend that the Deputy Master was wrong to take this course. Ms Can QC makes the very valid
point that at the time of the hearing, the Claimant had given no indication as to the nature of the proposed amendments
and had failed to provide any adequate response to the Defendants Pt 18 Request. Further, on one reading of the
directions ordered by the Deputy Master, he appears to have given actual permission to amend the pleadings, thus
disabling the Defendants from later raising any issue on the pleadings.
[45] As I have already mentioned with regard to the appeal on specific disclosure, the question is whether the Deputy
Master was wrong to make this order in all - the circumstances in the exercise of his discretion. In my view, the orders
made by the Deputy Master at paras (4) and (5) of the Order cannot be characterised as a wrongful exercise of his
discretion in the circumstances. At the outset of the hearing, Mr Legge had indicated to the Deputy Master that the
Claimant intended to amend her pleadings at some stage once she had had disclosure of the Files. If the Claimant was
going to do this, then obviously the Defendants would be entitled to amend their Defence, and the Amended Defence
already drafted by the Defendants might no longer be adequate. Likewise, if the Claimant was intending to amend her
claim, the amended pleading would hopefully answer all the points raised in the Pt 18 Request made by the Defendants.
The Deputy Master made it very clear at the hearing, although it is not expressly recorded in the Order drawn up by
Counsel, that he was not granting permission to amend to the Claimant. He made it clear that he was not going to grant
permission to amend because he did not have a draft before him nor had the Claimant indicated what form the
amendments would take. However, with a view to keeping to the timetable already embodied in the Order of Master
Bowles dated 20 October 2006, the Deputy Master made an order providing for the service by the Claimant on the
Defendants of any amendments on which the Claimant wished to rely by a certain date, and for the consequent service
of an amended Defence by the Defendants. The question of permission would await another day, once both parties had
had the opportunity to review the amended pleadings.
[46] As a practical and pragmatic way of dealing with the situation before him, the orders for service of amended
pleadings by each of the parties were neither unreasonable nor unjust. In making the directions he did, the Deputy
Master was clearly attempting to save the trial date; something which both parties were keen that he should do. (The

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trial date has now unfortunately been vacated as a result of the present appeal.)
[47] Whilst the Deputy Master could have ordered the Claimant to provide answers to the Pt 18 Request ahead of filing
an amended pleading, in view of the fact that the Deputy Master had decided that the Files should be disclosed, there
was little point in dealing with the Pt 18 Request and the Defendants' related application, since the Claimant's pleading
was almost certain to change in light of the new disclosure. Further, the Defendants' application for an order striking out
the offending paragraphs of the Particulars of Claim in default of provision of the Pt 18 responses was issued only on 31
May 2007, two working days before the hearing before the Deputy Master on 5 June. It had a time estimate of three
hours and as matters transpired, the parties were still dealing with the question of disclosure after the short adjournment.
[48] Accordingly, in my view, there is no warrant for interfering with the directions made by the Deputy Judge at paras
(4) and (5) of the Order, nor indeed with any of the other case management directions which appear to have been dealt
with consensually at the hearing and are embodied in paras (6) to (18) inclusive of the Order.
(iii) Costs
[49] The Deputy Master assessed the Claimant's cost and ordered the Defendants to pay the Claimant her costs of the
application for specific disclosure assessed at 13,854.98 by 4pm on 19 June 2007. This sum in fact represented the full
amount of the Claimant's costs on the application.
[50] In their Grounds of Appeal, the Defendants make a number of submissions with respect to this order:

a) The application for specific disclosure was not properly supported by evidence and was wrong in
principle;

b) The Claimant had failed to provide the further information sought by the Defendants under CPR 18
and to consent to the proposed amended defence

c) It was inappropriate for the Claimant to seek directions for expert evidence in respect of issues that
were the subject of pending applications for further information and to strike out and/or for summary
judgment

d) No proposed directions had been prepared by the Claimant ahead of the hearing or discussed with the
Defendants;

e) No effort had been made by the Claimant to agree directions and no explanation had been provided for
the Claimant's failure to seek directions earlier in view of the trial date of 8 October 2007.

[51] Before me, Ms Carr QC made the additional point that the order made by the Deputy Master was tantamount to an
order for indemnity costs, giving the Claimant every penny she claimed. Ms Carr submitted that the Deputy Master
ought to have knocked off at least a third on his assessment of costs and had ignored the fact that there had been an
effective CMC, the costs of which would usually be costs in the case. Further, as I have already mentioned, after

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hearing Mr Legge's submissions on the specific disclosure issue, Ms Carr submitted that given that paras (1) to (3) of
the Order did not in fact give the Claimant what she had been applying for but was a "significantly watered down"
disclosure order, this too ought to have been reflected in the costs order. In short, the Claimant, she said, had not won
her application.
[52] Many of the points made in the Grounds of Appeal fall away in light of my ruling that the order made by the
Deputy Master on the specific disclosure issue should not be disturbed. I have already set out the Deputy Master's ruling
on the costs, which sets out clearly the factors which the Deputy Master took into account in reaching the decision he
did.
[53] The Deputy Master was asked to and was entitled to assess costs at the hearing, pursuant to CPR Pt 44.7, so long
as it was practicable to do so. He was provided with a Schedule of Costs by the Claimant and so far as I can glean from
the Attendance Notes of the Hearing, none of the itemised figures on that Schedule was attacked by the Defendants,
save that the Defendants contended was that it was unnecessary for both a partner and an assistant from Mishcons to be
present at the hearing in circumstances where the Claimant was represented by Counsel.
[54] The approach to the summary assessment of costs is set out at CPR Pt 48.17. In short, the court should not be seen
to be endorsing disproportionate and unreasonable costs and when assessing costs, the court should, so far as possible,
ensure that the final figure is not disproportionate and/or unreasonable having regard to the overriding objective. The
fact that a paying party does not dispute an amount of costs may be taken as some indication that the amount is
proportionate and reasonable. Further, the Court of Appeal has made clear that what is required is a two stage approach.
There has to be a global approach and an item by item approach. The global approach will indicate whether the total
sum claimed is or appears to be disproportionate, having particular regard to the considerations which Pt 44.5(3) states
are relevant. If the costs as a whole are not disproportionate according to that test, then all that is normally required is
that each item should have been reasonably incurred and the costs for that item should be reasonable. If, on the other
hand the costs as a whole appear disproportionate, then the court will want to be satisfied that the work in relation to
each item was necessary, and if necessary, the cost of the item was reasonable. (Home Office v Lownds [2002] EWCA
Civ 365, [2002] 4 All ER 775, [2002] 1 WLR 2450).
[55] The Deputy Master took the view that the Claimant had effectively succeeded on her application. Whilst she was
prepared to accept the offer of a mediated approach to disclosure made by the Defendants in the face of an imminent
ruling from the Deputy Master, in his opinion, she had achieved what she asked for. The vast majority of the hearing
had been taken up with arguments over the disclosure of the Files, and the directions given (from paras (4) onwards in
the Order) were simply standard CMC directions, altering only slightly the timetable set by Master Bowles.
[56] Further, as appears from the Deputy Master's ruling, he did consider the proportionality of the costs and had regard
to the one objection raised by the Defendants' counsel, namely that it was not necessary for a partner and an assistant to
be in attendance at a hearing where the Claimant was represented by Counsel. The Deputy Master took this submission
into account but did not consider their attendance to be unwarranted in the circumstances, given their active
involvement in the case. As I have said, no other figure was specifically challenged by the Defendants.
[57] Further, the Deputy Master took into account the conduct of the Defendants with regard to disclosure and in
particular the fact that the Claimant had been requesting disclosure of the Files over a long period. Whilst there can
obviously be no criticism of Fishburns in this regard (as they only came onto the record in February 2007), the Deputy
Master was clearly entitled to take this factor into account.

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[58] In my opinion, although the order made by the Deputy Master may have been tantamount to an order for
indemnity costs, he was entitled, in the exercise of his discretion, to assess the costs in the amount he did in all the
circumstances, and there is no warrant for this court to interfere with the exercise of his discretion. The Deputy Master
was assessing the costs on the schedule provided to him by the Claimant. The Defendants did not put forward any
alternative figures. The Deputy Master considered the costs stated in the Schedule to have been reasonable and
proportionate and he considered and rejected the Defendant's contention that there should not have been attendance by a
partner and an assistant from Mishcons. Having regard to the conduct of the matter, in particular the failure of the
Defendants to provide disclosure of the Files over a significant period, he considered that the order was just and
proportionate in all the circumstances.
[59] The Order as to costs may undoubtedly seem somewhat harsh to the Defendants, and another Master may well not
have reached the same conclusion as Deputy Master Behrens. Further, it is correct that the order the Deputy Master
made was tantamount to an order for indemnity costs and that the making of a costs order on an indemnity basis is
appropriate only in circumstances where the facts of the case and/or the conduct of the parties is such as to take the
situation away from the norm. (CPR Pt 44.4.3). However, the Deputy Master, who was in the best position to judge the
position, took the view that this was the proper and just order to make in the circumstances, and in this case it would not
be appropriate for this court to interfere with the exercise of his discretion. Whilst I agree with Ms Carr QC that it is
commonplace on an assessment for a percentage to be knocked off the final figure, if the figures presented are
reasonable and proportionate in the circumstances and moreover are not (with one exception, which was considered and
rejected by the Deputy Master) specifically challenged, the court is entitled to make an order for their payment in full.
CONCLUSION
[60] Accordingly, for the reasons set out above, I would dismiss the Defendants' appeal in its entirety. I will hear
arguments on costs if the parties are unable to agree them.
Appeal dismissed.