The Court of Appeal has dismissed an appeal by defendants seeking additional documents about property transactions in Coventry and Birmingham, upholding a High Court decision that refused the late discovery request.
The appeal arose in a wider dispute in which property development companies allege that former employees breached employment contracts and other duties, diverted commercial opportunities and retained confidential documents. The defendants deny the claims. They have also raised a defence concerning alleged restrictions imposed by the National Asset Management Agency (NAMA). Those allegations remain part of the underlying proceedings; the Court of Appeal’s judgment concerned discovery, not the merits of the parties’ claims.
The defendants sought documents relating to arrangements involving the sites, including alleged dealings with a purchaser and communications concerning bank debt applications. In 2017, the High Court had ordered discovery of specified records concerning NAMA’s consent and communications, property contracts and planning applications. It had not ordered discovery of a separate category of communications with the purchaser. The defendants brought a further motion in June 2019, which the High Court refused.
At the appeal hearing, the defendants abandoned their argument that the requested documents were already covered by the 2017 order. They instead argued that additional discovery was necessary for a fair disposal of the case. They relied in part on evidence that had emerged after the underlying trial began in January 2020. The Court of Appeal said it was not appropriate to assess that new trial evidence when reviewing the earlier High Court order. It said a trial judge, with a fuller understanding of the evidence, would be the proper person to consider any discovery issue arising during trial.
The appeal court accepted that at least some of the documents sought were relevant. It agreed with the High Court, however, that relevance alone did not establish that the discovery was necessary and proportionate in the circumstances. The request had varied in scope, the estimated costs and time were disputed, and similar discovery had been refused in 2017 without an appeal. The court also noted that the defendants had other evidence available and had not sought a stay of the trial or promptly notified the trial judge of the appeal.
The Court of Appeal concluded that the High Court judge had made no legal error and had acted within the proper bounds of his discretion. It dismissed the appeal. The judgment did not determine the underlying allegations or order any additional discovery.