In Alstom Transport UK Limited v London Underground Limited and Transport for London (2017) EWHC 1406 (TCC) the principal issue was whether the Court should hear an application for specific disclosure before the application to lift the suspension. Coulson J concluded that it was appropriate for the application for specific disclosure to be heard in advance of the application to lift the suspension.
Coulson J considered that there was no principle to the effect that an application to lift the suspension will always or even usually be heard regardless or in advance of any application for specific disclosure. There could be no basis for any such principle. These cases always turn on their own facts and it would be dangerous to set out any overarching principle or general rule. There is a policy consideration which emphasises the need to have any hearing to lift the suspension heard as quickly as possible, and there will be times when, in consequence, no application for specific disclosure will or can be ordered in advance. But such an outcome will always depend on the facts.
There were two wider observations which Coulson J considered should be made. First, if there is a dispute about whether or not there is a serious issue to be tried, in circumstances where a claimant has raised what appears to be a bona fide application for specific disclosure, the court will be astute to prevent a defendant from obtaining an unfair advantage by refusing to disclose the documents sought, and then relying on the absence of such documents to argue that there is no serious issue to be tried. Second, the Court will also be anxious to avoid the situation where the application to lift the suspension has to be adjourned part-heard because, contrary to the assumptions originally made, the documents which had been sought were or might very well be relevant to that application. Thus if the matter comes before the Court for directions before either application is heard, the safest course will sometimes be to fix the specific disclosure application first in any event.
In any case, said Coulson J, the question as to whether the application for specific disclosure should be heard in advance of the application to lift the suspension turns on the extent to which any of the documents sought are or may be relevant to the application to lift the suspension. That requires the Court to analyse the nature of the documents sought, and what the issues are likely to be on the application to lift the suspension.
Coulson J concluded that, in order for the Court to do justice on the application to lift the suspension, he should set a timetable which allows for the hearing of the application for specific disclosure first. That was a decision reached on the facts of this particular case. It was the best way to ensure that the decision on the important application to lift the suspension was reached on as full a basis as possible. He was satisfied that the delay thereby caused would not cause LUL any prejudice. The delay resulting from his Order was proportionate and reasonable in all the circumstance