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	England and Wales High Court (Commercial Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Voltaire Capital Holdings Ltd & Ors v Watson & Ors [2025] EWHC 1948 (Comm) (28 July 2025) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2025/1948.html Cite as: [2025] EWHC 1948 (Comm)

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IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
KING'S BENCH DIVISION
COMMERCIAL COURT

		Royal Courts of Justice, Rolls Building Fetter Lane, London, EC4A 1NL
		28/07/2025

This judgment was handed down remotely at 2.00pm on 28 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Mr. Nigel Cooper KC :

1. On 11 April 2025, I heard the Second Defendant's application for disclosure guidance in accordance with paragraph 11 of Practice Direction 57AD made by an Application Notice dated 24 February 2025. During the hearing ("the DGH"), I gave disclosure guidance, which was subsequently recorded in a Disclosure Guidance Note approved by me on 21 April 2025 ("the Note"). At the end of the hearing, the Claimants stated that they wished to apply for their costs of the application. Given that the DGH had already exceeded its allocated hearing time, I indicated that I would deal with any application for costs on paper. This is my judgment on the Claimants' application for costs having considered (i) the Claimants' costs submissions and accompanying documents (including a summary statement of costs) served on 17 April 2025 (ii) the Second Defendant's costs submissions and annexures served on 25 April 2025 and (iii) the Claimants' reply costs submissions served on 30 April 2025.

Disclosure Guidance – paragraph 11 of PD57AD

2. The notes in volume 2 of Civil Procedure say that the disclosure pilot scheme, including PD57AD is intended to introduce a new culture of disclosure stressing the imperative nature of party cooperation; see note PD57AD 2AA-53. In line with that intended spirit of cooperation, paragraph 11.1 of PD57AD provides for a party to be able to obtain disclosure guidance from the court, where:

i) There is a significant difference of approach between the parties;

ii) The parties require guidance from the court in order to address the point of difference between them without a formal determination; and

iii) The point is suitable for guidance to be provided either on the papers or, other than in substantial claims, within the maximum hearing length and maximum time for pre-reading provided at paragraph 11.2.

3. It is clear from the provisions of paragraph 11 generally, that disclosure guidance is intended to be a reasonably informal procedure in comparison to a fully contested formal application. Although an application notice is required, evidence is not and ordinarily the maximum hearing length is to be 60 minutes with 30 minutes pre-reading. The court may decide to deal with the application on the documents and without an oral hearing. If there is a hearing, then paragraph 11.3 provides that the court will generally expect a legal representative with direct responsibility for the conduct of disclosure to be the person who participates on behalf of each party in the discussion; in other words not necessarily the parties' counsel or advocates.
4. Paragraph 11.5 sets out the ordinary position in relation to costs, namely that unless otherwise ordered, the costs of an application for disclosure guidance will be costs in the case and no order from the court to that effect is required.

The DGH

5. In the context of what is on any view, substantial and complex multi-party litigation, the DGH was inevitably significantly more onerous than the type of guidance hearing ordinarily envisaged by paragraph 11.

i) In line with the estimate in the Application Notice, the hearing was listed for 2.5 hours and in fact took slightly longer.

ii) Both parties appeared by counsel; the Claimants by both leading and junior counsel and the Second Defendant by junior counsel.

iii) There was a substantial hearing bundle running to some 900 pages and this was accompanied by the case management bundle with a witness statement from Mr. Yardley on behalf of the Claimants answering the Second Defendant's criticism of the Claimants' approach to disclosure and preparation for the first CMC. The hearing bundle included approximately 261 pages of correspondence.

iv) There were significant skeleton arguments from both parties; the skeleton argument of the Claimants running to some 16 pages and (with the permission of the Court) the skeleton argument of the Second Defendant running to some 39 pages (including 11 pages of Appendix).

6. As set out in the Note, I gave guidance on each of the issues raised by the parties to the effect that:

i) With limited exception, the Claimants were not required to apply the additional search terms sought by the Second Defendant to either the Gemini Custodians or the VCUK Custodians.

ii) The full set of search terms in Schedule 1 to the Note were to be applied to one further e-mail address.

iii) The parties were to cooperate to agree the terms of a Model C disclosure request concerning the Claimants' claim to recover their costs of funding Deloitte's investigations.

iv) The Claimants were to provide a complete list of all devices, data repositories and categories of documents collected and processed by Deloitte as well as an explanation as to the scope of the VCUK documents the Claimants were proposing to search.

7. As the Claimants submitted in support of this application, the majority of the hearing before me was concerned with the question of whether the Claimants were required to apply additional search terms to the two sets of custodians identified above.

The parties' respective positions on costs in principle

8. The Claimants submit that the Second Defendant should pay all or a substantial proportion of their costs because:

i) Overall, the Claimants were the successful parties in relation to almost all of the disputed points.

ii) The Claimants succeeded on grounds which they had articulated from the outset; see for example correspondence dated 16 September 2024, 10 December 2024 and 07 February 2025.

iii) Costs were incurred because (i) the Second Defendant went out on a limb, challenging the scope of disclosure which had been agreed with all the other active Defendants, (ii) the Second Defendant's approach was sweeping in nature and (iii) the Second Defendant was unwilling to compromise prior to the hearing.

iv) Extensive costs have been incurred in relation to an application, which went well beyond the usual one hour time limit for disclosure guidance hearings. In effect, the application was a weighty application for specific disclosure and it is appropriate that the claimants should be entitled to recover their costs when their resistance was justified. It would be wrong, if having successfully resisted the Second Defendant's approach, the Claimants were left out of pocket in respect of the costs of doing so.

9. The Second Defendant submitted, in contrast:

i) The Claimant did not serve a statement of costs before the DGH as PD44 at paragraph 9.5(4)(b) requires. The Court should take this failure into account in deciding what costs order to make.

ii) The fact that PD57AD §11.5 provides that costs will be in the case unless otherwise ordered reflects the fact that resolution of disagreements over disclosure is part and parcel of case management and anticipates close cooperation between the parties.

iii) The Court in London & Quadrant Housing Trust & Ors v. WPHV Ltd & Ors [2024] EWHC 1122 (TCC) at [15] held that an application in relation to redactions and privilege was not properly brought because it did not have the characteristics of an application for informal guidance.

iv) The DGH served the function of resolving case management issues stood over from the first CMC and which would have been resolved at that CMC if the Claimants had been sufficiently prepared for that hearing.

v) The work which the Claimants were required to do in response to the Second Defendant's application is work which is part of the ordinary course of litigation where agreement on search terms is required.

vi) The Second Defendant was successful on key issues raised by his application.

vii) The Claimants' objections to the Second Defendant's proposed search terms were based on hit counts provided only shortly before the hearing despite the Second Defendant's requests for this information being made in October 2024.

viii) A DGH was necessary because the Claimants' delays meant active case management from the Court was required. Further, the parties were not going to narrow the issues remaining in dispute without a DGH.

ix) The fact that other Defendants have not joined with the Second Defendant's application is not a good point taking into account the limited resources of some of the Defendants and the differing roles of Defendants within the litigation. In any event, the fact that other Defendants have not supported the Second Defendant's application does not mean that it was meritless.

10. In reply, the Claimant made the following points:

i) The default position on costs under paragraph 11 is no more than a starting point. There are examples of the Court departing from the default position; see London & Quadrant Housing Trust & Ors cited above and Excelerate Technology Ltd v. West Midlands Ambulance Service NHS University Foundation Trust [2024] EWHC 177 (TCC). Further the Second Defendant has not addressed the Claimant's point that the Application was essentially a heavy application for quasi-specific disclosure.

ii) In terms of time at the hearing, far more time was spent on the issues for which the Claimants were successful than on the issues for which the Second Defendant was successful. Further the overall volume of new documents generated by the searches which have been directed is significantly smaller than the volume generated by the searches which the Second Defendant sought.

iii) The suggestion that the need for the DGH stemmed from the Claimants' conduct is fanciful. The Second Defendant adopted a unreasonable and disproportionate approach demanding additional search terms producing hundreds of thousands of additional hits. Further, the fact that the Claimants showed a willingness prior to the hearing to accommodate some of the Second Defendant's requests is an illustration of a reasonable approach to disclosure.

iv) The suggestion that hit counts were produced late has no credibility because (i) it was obvious that the generic terms proposed by the Second Defendant would produce a large number of hits if used without connectors, (ii) the Claimants had previously provided hit counts for disputed terms to no avail and (iii) when a full range of updated hit counts were provided on 09 April 2025, the Second Defendant pressed ahead with the hearing notwithstanding the large volume of documents for review that the hits would generate.

Discussion

11. I do not regard the Claimants' failure to provide a statement of costs prior to the DGH as something which prevents the Claimants from seeking a different costs order to that provided under paragraph 11.3. It was in my view foreseeable to both parties that, depending on the outcome of the DGH, one or other party would be likely to seek an order for costs and neither approached the hearing in a different way because no statements of costs had been served. Further, the late submission of the schedule does not appear to have caused any difficulty to the Second Defendant in dealing with costs nor has it caused the Court any difficulty in dealing with a summary assessment.
12. I accept that the ordinary costs position found in PD57AD §11.5 reflects the expectation that a disclosure guidance hearing will be one at which the Court gives informal guidance to the parties as to the manner in which they carry out a particular aspect of disclosure. In Quadrant Housing Trust, the Court made a different order for costs because it considered that the questions of privilege raised by the claimants' application was not properly the subject of disclosure guidance but should have been brought as a separate application. Underlying Jefford J's decision in Quadrant Housing Trust was her finding that the application went well beyond the scope of informal guidance, even allowing for the fact that disclosure guidance is a tool which is still intended to be available for substantial claims and may require time for pre-reading and hearing going beyond the ordinary maximum hearing length and maximum pre-reading set down in PD57AD §11.
13. A similar position arises in the present case. Although the application is one for disclosure guidance, the manner in which it has been conducted by the parties is consistent with a heavily contested disclosure application rather than an application for informal guidance envisaged by PD57AD. As already outlined in paragraph 5 above, both parties instructed counsel for the hearing; in the case of the Claimants including leading counsel. The hearing took slightly longer than the 2.5 hours allowed.
14. So far as it is suggested that the hearing addressed matters which could otherwise have been dealt with at the first CMC if the parties' preparation had allowed, I am sceptical as to whether this would have been the case. But in any event, I have no doubt that the issues which I have resolved at the DGH would still have been heavily contested as if by way of separate application even if time had allowed for the disclosure issues to be addressed at the first CMC.
15. So far as the Second Defendant relies on alleged delays on the part of the Claimant in preparation for the first CMC as being causative of the need for the DGH, I am not in a position to make any sensible determination as to whether any delays in agreeing appropriate disclosure parameters cannot obviously be ascribed to one party rather than another. It appears that the Claimants and other Defendants considered at the first CMC that more time was required for the parties to seek to agree relevant search terms.
16. So far as the Second Defendant complains about delays by the Claimants in providing hit counts prior to the DGH, I do not accept that the Second Defendant would have adopted a different approach to the DGH even if he had received the hit counts sooner. Having received the hit counts, the Second Defendant continued to press at the hearing for the additional search terms he sought in respect of the Gemini Custodians and the VCUK Custodians.
17. I accept that the mere fact that other Defendants have previously agreed the scope of disclosure with the Claimants does not mean that the Second Defendant's challenges to the Claimants' position on the scope of disclosure were necessarily without merit. However, I do consider that there is considerable force to the Claimants' submissions that:

i) It was reasonably obvious that the generic terms proposed by the Second Defendant would produce a large number of hits if used without connectors;

ii) The Claimants had previously provided hit counts for disputed terms to no avail; and

iii) When a full range of updated hit counts were provided on 09 April 2025, the Second Defendant pressed ahead with the hearing notwithstanding the large volume of documents for review the hits would generate.

18. I also consider that when it comes to assessing the relative success of the Claimants and the Second Defendant at the DGH, the Claimants are correct that:

i) In terms of time at the hearing, far more time was spent on the issues for which the Claimants were successful than on the issues for which the Second Defendant was successful.

ii) The overall volume of new documents generated by the searches which have been directed is significantly smaller than the volume generated by the searches which the Second Defendant sought.

iii) Although the Second Defendant was successful in asking for the search terms to be run over Naguib Sawaris' @dwcllp.com e-mail address, that success only relates to the narrow agreed search terms and the issue took very little time at the hearing.

19. Further in relation to Deloitte's investigations, the Model C disclosure ordered relates only to the Claimants' claim to recover costs allegedly incurred in relation funding those investigations rather than the wider search sought by the Second Defendant for documents created in the course of Deloitte's investigations.
20. The matters discussed in paragraphs 13 to 19 above are, I conclude, sufficient to justify a departure from the default position in paragraph 11.5 of PD57AD and to justify an order that the Second Defendant pay the Claimants' costs of the DGH to be summarily assessed.
21. I do not consider that I should make any reduction to the Claimants' costs to reflect any delay on the part of the Claimants. As set out above, I do not consider that it is possible to assign any responsibility for any delay and in any event I am not persuaded that the Second Defendant would materially have changed its position on the search terms if hit counts were available earlier. I do consider it appropriate to reduce the Claimants' costs by 10% to reflect the Second Defendant's limited success on certain issues.

Quantum

22. The Claimants seek to recover a sum of £94,159.75 comprised of £59,862.75 for solicitor time costs and £34,297.00 for counsels' fees and other disbursements.
23. The Second Defendant challenges the level of these costs on the basis:

i) The hourly fees of the Claimants' fee earners significantly exceed the solicitor guideline rates.

ii) Excessive time has been incurred by the Claimants' fee earners in respect of the preparation of the third witness statement of Mr. Yardley and the work on the hearing bundles.

iii) It was not necessary for the Claimants to instruct both leading and junior counsel.

24. Dealing with the first two points raised by the Second Defendant, it is common ground that this is complex and substantial litigation. But that on its own does not justify hourly rates substantially in excess of the guideline rates. However, the guideline rates are also a starting point, they do not operate as a cap. It is also correct that I have no evidence as to the rates being charged by the Second Defendant's legal representatives. Doing the best I can, I reduce the overall cost claimed for fee-earner time to £50,000. I make a further reduction of £4,000 in respect of the time for preparation of Mr. Yardley's third witness statement, which does seem to be excessive in the absence of further explanation. The costs recoverable for the time of fee earners are assessed at £46,000.
25. So far as the costs of counsel are concerned, there is considerable force to the submission that it was not necessary for the Claimants to instruct leading counsel for the hearing notwithstanding the level of very helpful assistance to the Court provided by Mr. Barden KC. It is not, however, appropriate for me to simply deduct Mr. Barden's fees. The appropriate reduction should reflect (i) the likelihood that Ms. Green's fees would have been higher if she was appearing on her own or (ii) the possibility that the Claimants would have instructed a more senior junior counsel for the hearing. Overall, I consider it appropriate to reduce counsels' fees by £10,000 to £24,000.
26. Overall, therefore, I summarily assess the Claimants' costs in the sum of £70,297.00. Applying the 10% reduction referred to in paragraph 21 above, this figure reduces to £63,267.00.

Conclusion

27. For the reasons set out above, I conclude that the Second Defendant should pay the Claimants' costs of the Disclosure Guidance Application, summarily assessed in the amount of £63,267.00.
28. I would be grateful if the parties would agree a form of order for my approval reflecting this conclusion.