When parties in litigation seek documents and information in the hope of finding a claim or bolstering their cases the courts have to balance the interests of both parties in requiring them to be provided. The Court provided a timely reminder of the limits and appropriate use of disclosure remedies of this sort on 29 August 2013.
The dispute relates to a competition claim brought by Arriva against London Luton Airport Operations Limited (LLAOL), the operator of London Luton Airport (until 2028). From May 2013, an agreement for dedicated direct coach services from central London to the airport was awarded to National Express. The agreement gave National Express exclusive rights to operate the service to and from the airport’s public transport hub for seven years.
Arriva alleges an abuse of dominant position by LLAOL and standard disclosure was ordered. However, Arriva sought additional wide-ranging disclosure including the airport's management accounts relating to costs for aeronautical services and non-aeronautical services and other services, LLAOL's rates, structure and contract terms, LLAOL's internal documents and/or minutes relating to its commercial strategy, passenger and revenue data for the National Express service and airport traffic management documents.
Mr Justice Morgan adopted a robust position based on the fact that the dispute related to a very narrow market, namely matters connected to the relevant bus service. Information relating to any other services were not relevant. The judge was additionally reluctant to grant disclosure of documents where requests for further information would have sufficed but had not been made. In relation to National Express documents in LLAOL’s possession, it was noted that much of it would be commercially confidential and therefore protected from disclosure. For National Express documents not in LLAOL’s possession, it was not appropriate for Arriva to pursue these under the guise of standard disclosure (it would have to apply for a non-party disclosure order directly against National Express). Finally, in the case of airport traffic management documents, it was clear to the judge that Arriva was seeking evidence to create a claim rather than seeking disclosure of pleaded issues.
In what appears to have been a difficult court appearance for Arriva, parties are reminded of the limits of relevance, reasonableness and proportionality when it comes to standard disclosure of documents which are or have been in another party’s control. Courts are unlikely to accede to disclosure requests which appear too broad or speculative, particularly since the changes to the disclosure regime introduced from April 2013 emphasising proportionality and costs control.
Brian Wong and Ann Metherall advise transport operators and commercial clients on dispute resolution.