Gower Chemicals Group Litigation v Gower Chemicals Ltd & Anor  EWHC 735 (QB)
This is a matter where the Claimant sought to recover the costs of privileged, undisclosed expert reports at detailed assessment. Costs Master Wright had ordered the Claimant to elect to either disclose the reports to the paying party or to decline disclosure and rely on other evidence, pursuant to PCD 40.14. The cost of the reports amounted to over £30,000.
The Claimant argued that Costs Master Wright was wrong in that he failed to:
- “identify a genuine issue, resolution of which required reliance on the contents of the undisclosed reports”;
- “consider the contents of the documents himself in order to determine whether they were of sufficient importance to be taken into account at arriving at a conclusion as to their recoverability”.
- “consider whether it was both reasonable, just and proportionate to put the Claimants to their election in respect of the documentation being disputed”;
- “balance the interests of the parties accurately or fairly by wrongly accepting the Defendants’ submission that once a paying party states that it does not wish to deal with the matter on an informal basis the receiving party should be put to their election.”
It was held that with regards to 1), a “real and relevant issue” had been identified in that the expert reports in question had not been disclosed or relied upon.
The second ground of appeal failed because, as the issue in 1) had arisen, there was no need for Costs Master Wright to inspect the documents himself.
With regards to the third ground of appeal, it was stated that Judges endeavoured, always, to make discretionary orders which were reasonable, just and proportionate. Costs Master Wright’s failure to expressly state this does not mean that he had failed to consider these concepts.
The final ground for appeal failed. A paying party could not, by declining to deal with the matter on the usual informal basis, invariably and automatically compel the putting of the receiving party to his election. However, this was not the case here. There was a clear issue which had arisen and a clear justification for the paying party to request disclosure of these reports, which were potentially of substantial importance, if they were relied upon by the Claimant.