The High Court has refused an application by investors seeking permission to use about 5,000 documents disclosed in separate litigation against BDO. The plaintiffs also sought release from their implied undertaking not to use those documents outside the proceedings in which they were disclosed.
In a judgment delivered on 8 February 2023, Ms Justice Bolger said the plaintiffs had not established special circumstances or shown that the Parish Consortium documents were of obvious relevance to their claims concerning losses on a separate investment, the Jubilee Consortium.
BDO had assembled the Parish Consortium in 2004 to buy a UK shopping centre. It later arranged for a separate group, the Jubilee Consortium, to buy ten units in the centre. Some investors were involved in both groups. Investors in both consortia suffered losses.
Proceedings brought in 2010 by some Parish investors against BDO were settled in 2017. In those proceedings, BDO provided around 5,000 documents through voluntary discovery. The present case, issued in 2011, concerns Jubilee investors’ claims for compensation. Seven plaintiffs were also plaintiffs in the Jubilee proceedings, while the others were involved only in the Parish Consortium, the judgment says.
The plaintiffs argued that the investments had important connections, including BDO’s involvement with both, a similar trust structure and the same lending bank. They said the documents could assist them in responding to BDO’s application to dismiss the case for delay and in pursuing a proposed preliminary issue about the independence of a valuation report.
BDO argued that the documents concerned a different investment, investors and investment memorandum. It also raised confidentiality concerns and said the plaintiffs should seek relevant material through ordinary discovery.
Justice Bolger said an application to reuse discovery requires the court to consider special circumstances, the documents’ relevance, the circumstances and extent of the original disclosure, possible injustice to the disclosing party and whether ordinary discovery is available. The court must also consider whether the allegations for which the documents are sought have been pleaded.
The judge found that the plaintiffs had not explained how the broad categories of Parish documents were relevant and necessary to their pleaded case. Several categories concerned matters specific to the Parish investment, including its property manager, management, refinancing and investor liabilities. The judge said those matters were difficult to connect to the Jubilee claims on the material presented.
The court was not persuaded that the documents were needed for the delay application or the proposed valuation issue. No preliminary issue was before the court, and the plaintiffs could still seek documents through an ordinary discovery application. The judge also rejected the argument that section 13 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 gave the plaintiffs an entitlement to obtain or use material subject to the undertaking.
The application was refused. The matter was listed for mention on 21 February to hear any further submissions on costs and final orders; the judgment did not determine those matters.