The High Court has directed parties in related commercial proceedings to provide further particulars of their claims and proposed allowing an amendment to a separate claim by Brian Cunningham. It did not make final discovery orders at this stage, instead leaving room for proposed limits and further argument.
In a judgment delivered on 20 October 2005, Mr Justice Clarke addressed procedural applications in proceedings linked for case management. The principal claims arise from lending by First Active plc to companies associated with Cunningham. The companies allege, among other matters, that First Active acted as a shadow director, breached lending terms and duties, and that a receiver was invalidly appointed and acted negligently. First Active and the receiver deny the allegations. The judgment did not determine those underlying claims.
On discovery, the judge rejected Cunningham’s broad objection that discovery was unnecessary because First Active already held many of the documents. He considered that the defendants were generally entitled to discovery of relevant documents the plaintiffs considered material to their case, including documents already in defendants’ possession. He did not make an order that day. Cunningham was given an opportunity to propose reasonable limits, with disputes to be decided later. The receiver was also allowed to give proper reasons for seeking documents in categories 2, 3 and 4; the court said the reasons then given did not correspond to those categories.
The judge directed the plaintiffs in the principal proceedings to answer outstanding requests for particulars, including details of alleged oral agreements, delayed advances, alleged breaches and the receiver’s acts said to attract First Active’s vicarious responsibility. In Porterridge Trading Limited’s proceedings, the plaintiff was directed to particularise its slander of title claim and clarify the duties and breaches it alleged against First Active. The judgment left the precise mechanics of delivering the particulars for further consideration.
Cunningham also sought permission to amend his statement of claim in a related guarantee case by removing relief seeking declarations about certain guarantees. The judge said the proposed change reduced the issues and addressed a problem identified in an earlier application. He proposed allowing the amendment, while noting First Active could later rely on the history of the pleadings if relevant to credibility.
Two applications to bring additional proceedings into the case management process were handled differently. Clarke considered it prudent for another judge or the President of the High Court to decide whether to link First Active’s summary guarantee proceedings, given a possible prejudice concern if he heard them. He formed no view on whether that concern was well founded. He likewise considered it prudent for someone else to decide whether to link the receiver’s loan repayment proceedings, where the issues had not yet been established by a replying affidavit.