Case Law Article Analyzes Proper Procedure for Seeking Court Guidance on Disclosure Issues

Citation: [2024] EWHC 177 (TCC)
Judgment on

Introduction

This article presents an analysis of the pertinent aspects of the case law involving Excelerate Technology Limited and West Midlands Ambulance Service NHS University Foundation Trust & Anor ([2024] EWHC 177 (TCC)). The case concerns guidance sought for disclosure issues in a public procurement matter before the Technology and Construction Court (TCC). The Honourable Mr Justice Pepperall has delivered a judgment that not only resolves the immediate dispute but also reinforces procedural directives concerning disclosure in legal proceedings.

Key Facts

In Excelerate Technology Limited v West Midlands Ambulance Service NHS University Foundation Trust & Anor, the claimant, Excelerate Technology Ltd, failed to issue a formal application notice when seeking the court’s direction on unresolved disclosure issues, contrary to the standard practice. Subsequently, the court was required to sift through extensive correspondence and documentation to determine the nature of the dispute. The procedural oversight led to unnecessary delay and inefficiency, eventually prompting the court to clarify the proper procedure for seeking guidance on disclosure.

The legal principles applied by Mr Justice Pepperall concern the correct procedure for seeking court guidance on disclosure disputes and the consequential costs implications. Disclosure guidance in the Business & Property Courts is supposed to follow Practice Direction 57AD (paragraph 11) and Practice Direction 31B (paragraph 17) for electronic documents disclosure disagreements, unless the court orders otherwise. The key practice points elucidated by Justice Pepperall include:

  1. Application Notice Requirement: When parties face a significant disagreement on disclosure that requires the court’s intervention, they should issue an application notice formally identifying the dispute. This document should articulate a clear need for guidance or further direction from the court and must be suitable for a guidance hearing.

  2. Focus on Dispute: The application notice should be precise about the issues in need of the court’s input, prompting the parties to concentrate their arguments and enable possible resolution without a hearing.

  3. Electronic Documents Disclosure: The judgment references Practice Direction 31B, which relates to electronic documents disclosure, underscoring the court’s role in directing the process when the parties fail to agree.

  4. Costs of Disclosure Hearings: The costs associated with disclosure guidance hearings should generally remain within the case, as per Practice Direction 57AD (paragraph 11.5), unless particular circumstances dictate otherwise.

Outcomes

The outcomes of the judgment were multifaceted:

  • It provided a procedural clarity on how to properly seek the court’s assistance on disclosure issues.
  • Excelerate Technology Ltd was reprimanded for failing to engage timely and adequately with NHS England on disclosure issues.
  • Excelerate was ordered to absorb NHS England’s costs associated with the hearing for this failure.
  • The court used its discretion, due to the facts presented, to depart from the standard costs rules of PD57AD, para. 11.5.

Conclusion

Mr Justice Pepperall’s judgment reinforces the importance of following established protocols for disclosure guidance, particularly in complex procurement cases. The case serves as a cautionary tale that parties must articulate their disputes clearly through the proper channels to ensure the efficient administration of justice. It also reaffirms that failure to adhere to such protocols can have cost implications. Consequently, legal professionals must remain vigilant in their compliance with procedural directives to avoid unnecessary delays and financial consequences.