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Defendants directed to provide explanations of redactions to contracts for sale

By: James Cross BL

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High Court, in three motions seeking discovery and further and better discovery in long running and fiercely contested case, orders: (1) that the defendants provide a detailed explanation on oath of all the redactions made to the contracts for sale and make further and better discovery of all agreements in relation to the purchase, sale, development and finance of Phase 2 of property development project; (2) that the defendants to furnish a further explanation as to the methodology used when the defendants’ discovery was originally made; and (3) that the defendants motion for further and better discovery be refused on the grounds that discovery is not necessary for the fair disposal of the proceedings.

Discovery – Commercial court - three motions - long running and fiercely contested case - further and better discovery – substantive proceedings - breach of duty by failing to disclose certain commercial opportunities to the plaintiffs and diverted those opportunities for the benefit of the defendants and appropriated and retained certain confidential information - legal principles on further and better discovery – previous discovery order – discovery made - complaints regarding Defendants’ discovery – first motion for further and better discovery – settlement agreement - purported compliance with settlement agreement – re-entry of the motion – response to re-entered motion - outstanding Issues regarding first motion – defendants initially provided wholly incomplete extracts from the two contracts of sale - inadequate explanation for the redactions made - necessary in the interests of justice that the plaintiffs be permitted to obtain access to the other agreements referred to, subject to properly explained and justified redactions, if appropriate - necessary in the interests of justice that the plaintiffs are provided with a more detailed explanation on oath by one of the personal defendants on behalf of all of the defendants for all of the redactions made in the two contracts for sale exhibited - appropriate to direct the defendants to provide a detailed explanation on oath of the redactions to the contracts for sale – ordered further and better discovery of all agreements in relation to the purchase, sale, development and financing of Phase 2 of the project - further and better discovery re para. 1 of settlement agreement - should be an explanation as to how the methodology originally applied resulted in documents falling under Category 2 being missed, an explanation of the further review of that methodology carried out by the defendants under para. 1 of the settlement agreement, and an explanation as to how the defendants can be satisfied that all documents falling under Category 2 but not under any other categories have now been discovered - motion for discovery against defendants in relation to additional defendants and amended pleas - requirement by the defendants to provide an explanation as to the methodology adopted taking account of the deficiencies or problems identified by the plaintiffs – Defendant’s motion for further and better discovery – discovery order - admissibility of witness statement - whether documents sought are within terms of Order of discovery - not ordered to be discovered – should have appealed the order - whether nonetheless an order for discovery should be made of the documents sought - satisfied that the plaintiffs have demonstrated that it is not necessary for the fair disposal of the proceedings that the defendants obtain the additional discovery.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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