The claims in Sheeran v Chokri and Vardy v Rooney have attracted significant amounts of publicity for their subject matter – alleged copyright infringement by Sheeran in his song "The Shape of You" and the libel claim in relation to the"Wagatha Christie" social media saga. However, both have also involved several applications about the scope of the parties' disclosure obligations.
LITIGANTS MUST BE HANDS ON - Sheeran v Chokri
Following disclosure, Chokri & others had applied for an order that Sheeran & others had failed to adequately comply with their obligations in several respects.
The Judge in considering the application noted that to make a further order he needed to be satisfied that the terms proposed were reasonable and proportionate. He also emphasised that the applicant must demonstrate that there is a real likelihood of further documents existing and a reason to go behind the disclosure process already conducted. Speculation about that process, with nothing solid to back it up, will not be enough to warrant a further disclosure order.
It became apparent at the hearing that that Ed Sheeran had not conducted the disclosure exercise himself but had delegated it to his manager. The court was not content with that. A number of the searches for disclosure related to the creation process of The Shape of You (and a couple of other tracks). Documents, such as voice notes, texts and Whatsapp messages would have been created by Mr Sheeran on his own devices.
Therefore, the court considered that it was appropriate that Sheeran confirm the scope of the search undertaken, if only to produce a witness statement setting out the process he had followed and confirming that there were no additional documents.
The claim brought by Sheeran was for a declaration of non-infringement of copyright, so it is unsurprising that being "very busy people" was not a sufficient explanation for Sheeran not being actively involved in the disclosure process himself: he had chosen to bring the claim.
However, the court declined to make an order for disclosure of all communications concerning the writing, creation and recording of the tracks and a search on social media. The Judge considered that to order such searches would be disproportionate, where there was no real evidence of a serious problem and a further search would be unlikely to result in any further probative documents.
An underlying issue in the application was the scope of some of the requests made in the Disclosure Review Document (DRD). The Judge considered that they were very broad and not in line with the guidance of the court in Pipia: when agreeing Model C requests in a DRD each party needs to properly consider what they are actually agreeing to do in response to each request and not wave through very broad wording considering only after the event what actions are required.
The decision is also of particular relevance for those representing individuals. While a corporate body will allocate the management of the disclosure process to particular individuals who may not have been involved in the subject matter of the action directly, a natural person will be expected to have engaged with the process.
THE RESTRICTION ON USING DISCLOSED DOCUMENTS IS BROADER THAN YOU MIGHT THINK- "WAGATHA CHRISTIE" - Vardy v Rooney
This dispute has been going on for a number of years and from time to time pops up in the tabloids. The trial is fixed for 9 May 2022. The latest applications to the court included one by Colleen Rooney to join Rebekah Vardy's agent to the proceedings, in a claim for misuse of private information.
Due to the lateness of the application and the likely prejudice to the conduct of the trial, which would have to be adjourned were a new party to be joined, the application was refused. However, the court then had to consider Mrs Rooney's application for permission to use documents disclosed to her in the current proceedings against Ms Watt in separate proceedings.
CPR 31.22 is clear that a party may only use a document that has been disclosed to it for the purpose of the proceedings in which it has been disclosed. Unless the party who disclosed the document agrees then it is necessary for the court to give permission for a document to be used for another purpose.
In attempting to assert her claim against Ms Watt, Mrs Rooney had referred to disclosed documents and wanted to use them in the proposed new proceedings.
Her Counsel referred to a decision that had permitted disclosed documents to be used to bring new claims in existing proceedings, but also to join a third party into proceedings as a co-defendant in respect of the existing cause of action. The court had held that that constituted use "for the purpose of the proceedings."
However, the court distinguished the position where the claim against a third party was for a new cause of action – here misuse of private information, not libel - and viewed that as a collateral use, so refused retrospective permission for use of the documents.
CPR 31.22 is a minefield for the unwary. When using documents disclosed by another party, parties always need to keep in mind that they are not their own documents to use as they wish.
The court reemphasised that the public interest underlying the rule in CPR 31.22 means that the burden to discharge for permission is a high one. The judgment indicates that the evidence submitted to the court did not really deal with the special circumstances required to any real degree. In that situation, it is not surprising that the court was unwilling to give permission.
If a party wishes to use a document but is not doing so in relation to either a claim against a further party to an existing claim or a new claim against an existing party (construed narrowly) then requesting permission from the other party and/or the court is the right approach. Asking for retrospective absolution for a breach (as happened here) will generally be to start on the back foot.
This article has since appeared with the author's permission in the Expert Witness Journal – here.