DISPUTE RESOLUTION UPDATE
A recent Commercial Court ruling by Males J in Bank Mellat v HM Treasury demonstrates the willingness of the courts to adopt a flexible and cost-effective approach to disclosure, through the use of sampling.
This judgment is encouraging, in that it demonstrates that judges are willing to address the commercial and practical implications of disclosing large volumes of financial information; processes which monopolise time and increase valuable legal spend.
Males J considered the appropriate method to approach disclosure by the Claimant in respect of (on their submissions) some 2500 "impacted transactions".
At an earlier hearing, before Flaux J, it had been suggested that disclosure could be given in respect of an agreed sample of transactions. However, the parties' experts were unable to agree between them an appropriate approach to sampling.
The parties' respective positions on this issue were:
- HM Treasury - disclosure should be provided for all transactions to enable the claim to be "properly tested"; and
- Bank Mellat - to provide full disclosure was onerous, time consuming and expensive. The Bank proposed, as an alternative, that disclosure be given for 250 randomly selected transactions.
Males J, in giving judgement, acknowledged the impact of ordering full disclosure. He considered that the Bank's sample approach could be attempted in order for the parties' experts to consider "legitimate extrapolation" of the results. He also noted that, given the substantial nature of the claim: i) full disclosure could be required at a later date; and ii) for transactions to be relied upon, reliable supporting evidence would need to be provided.
This judgment marks a novel departure from standard disclosure and an acknowledgment that alternative approaches can and should be explored, in an effort to save time and cost.
Bank Mellat v Her Majesty's Treasury  EWHC 2409 (Comm)