In Padun v Dickinson [2026] EWHC 2308 (Ch) ('Padun'), ICC Judge Barber, under the heading 'Specific disclosure - principles' said, at paragraphs 61 to 62, and 65 to 71:

'The principles to be applied on a specific disclosure application were largely uncontentious.

CPR r.31.12(1) and (2) provide:

(1) The court may make an order for specific disclosure or specific inspection.

(2) An order for specific disclosure is an order that a party must do one or more of the following things –

(a) disclose documents or classes of documents specified in the order;

(b) carry out a search to the extent stated in the order;

(c) disclose any documents located as a result of that search.

...

The application should set out the documents or classes of documents for which disclosure is sought, carefully defined so as to be limited to what is relevant and proportionate: City of Gotha v Sotheby's [1998] 1 WLR 114, CA.

The evidence in support must explain in relation to each class or category why it is reasonable and proportionate for those items to be disclosed.

The relevance of documents is analysed by reference to the pleadings and the factual issues in dispute: Harrods Ltd v Times Newspapers Ltd [2006] EWCA Civ 294 per Chadwick LJ at [12]:

‘In my view the judge was plainly correct to approach the application for further disclosure on the basis that it was essential, first, to identify the factual issues that would arise for decision at the trial. Disclosure must be limited to documents relevant to those issues. And, in seeking to identify the factual issues which would arise for decision at the trial, the judge was plainly correct to analyse the pleadings. The purpose of the pleadings is to identify those factual issues which are in dispute and in relation to which evidence can properly be adduced. It is necessary, therefore, to have in mind the issues as they emerge from the pleadings and are relevant in the present context.’

[Counsel for the First Respondent] also referred me (by way of analogy) to the recent case of Cohen v Co-Operative Group Ltd [2025] EWHC 526 (Ch) at [29] and [32], in which Fancourt J (as he then was) refused permission to adduce expert valuation evidence sought to advance a case which had not been pleaded.

In deciding whether to exercise its discretion in favour of specific disclosure, the Court has regard to: (i) whether the party seeking disclosure has made a prima facie case that the documents sought are relevant to a pleaded issue; and (ii) whether an order is in accordance with the overriding objective and is proportionate in all the circumstances: Soriano v SEBDO [2022] EWHC 3370 (KB), at [17], [45]; PD31A para.5.4.

Before the Court will order specific disclosure it will need to be satisfied, at least prima facie, that the documents are not only relevant but also that they are (or have been) in the control of the party: Portman Building Society v Royal Insurance Plc [1998] PNLR 672, CA.

It is not usually open to the Court to reject the evidence of a party's solicitor after due enquiry that the requested documents do not exist: Henderson v Overall, unreported, 13 December 2001.'

Facts 

Padun concerned a s.994 of the Companies Act 2006 petition (the 'IMG Petition'), wherein, the petitioner ('Petitioner') alleged that he, qua shareholder, had suffered unfair prejudice as a result of the conduct/affairs of a company (IMG) he held shares in. In part, the Petitioner's complaint was the First Respondent had had a secret plan, to extract the value out of IMG, including through IMG entering liquidation, '...as a means of ousting the Petitioner from the businesses and taking control of them for himself.' (paragraph 23). Further that, '...the First Respondent put that plan into effect ‘on 17 March 2022 and thereafter’ by taking a series of steps which included excluding the Petitioner from the management.' (paragraph 23)

Later, IMG had entered creditors voluntary liquidation, and the liquidator had caused the company to sell some of its assets (shares in subsidiaries) at modest prices.

But, there was an issue with the IMG Petition. The issue was whether the Petitioner's shares in IMG had had, when the alleged wrong (exclusion) started, no more than a nominal value. Since this could be fatal to the IMG Petition. On this issue, earlier, the First Respondent had brought a strike-out/summary judgment application against the IMG Petition

'...on the ground that IMG was insolvent and facing inevitable entry into a formal insolvency process prior to the Petitioner’s exclusion in March 2022, with the consequence that the Petitioner’s shares in IMG were at all material times of no value and the Petitioner could not have suffered any prejudice, even on his own case. In this context the First Respondent relied upon In re Tobian Properties Ltd [2012] EWCA Civ 998 in which Arden LJ (as she then was) had stated at [11] that, given that shares in an insolvent company are ordinarily of no value, a petitioner pursuing unfair prejudice proceedings in respect of such a company must generally:

(1) show that the company has claims against the respondent to the petition which will eliminate the deficiency and produce a surplus for members; or

(2) demonstrate that the petitioner's shares would have had a value but for the wrongdoing of the respondent.' (paragraph 45)

ICC Judge Jones heard the strike-out/summary judgment application, but refused to acceded to it, because there was a lack of evidence about the Petitioner's share value (a erroneous assumption about IMG's assets had been made by both parties; paragraph 48). 'ICC Judge Jones directed the Petitioner to apply to amend the petition so as 'to identify a valuation'.' (paragraph 52). The Petitioner applied to amend the Petition, but the proposed amendments were lacking in respect to the value of the Petitioner's shares (paragraph 55)

'The Petitioner sought to excuse the paucity of his proposed amendments on value on the expressly pleaded (but contested) basis (at para 37) that the First Respondent had not complied with the Petitioner’s reasonable requests for information.' (paragraph 57)

Deputy ICC Judge Schaffer considered the strength of the proposed amendments to be finely balanced, but ultimately granted permission to amend. In doing so the deputy judge declined to decide the contested issue whether the First Respondent had or had not refused to comply with reasonable requests for information, instead indicating that an application for specific disclosure might be required if the Petitioner maintained his position on that issue.

The order of Deputy ICC Judge Schaffer dated 22 October 2024 provided that if a specific disclosure application was not made, (1) the petition was to be relisted before him for consideration of whether it should be permitted to proceed, and (2) the First Respondent would have liberty to reapply for reverse summary judgment or to strike out the Petition.

The Petitioner’s specific disclosure application was then issued on 11 November 2024.'

After considering the specific disclosure application, ICC Judge Barber in Padun, at paragraph 205, concluded:

'(1) on the evidence before me the Petitioner has failed to make out a prima facie case that the documents sought by his application, over and above those already disclosed by the First Respondent, are relevant to a pleaded issue and are in the possession or control of the First Respondent; and

(2) given the procedural history of this case and the Petitioner’s vexatious and unreasonable conduct of this application, as outlined in this judgment, it would not be in accordance with the overriding objective and proportionate in all the circumstances to grant the relief sought in any event: Soriano v SEBDO [2022] EWHC 3370 (KB), at [17], [45]; PD31A para.5.4.'

Collatory Case Series

The Collatory Case Series, is an series of bulletins, designed to report that one case (perhaps, with a few extra authorities sometimes), which collates the essential principles/propositions of law, for a particular doctrine/area of law. It is not designed as a deep and comprehensive review of an area of law, but to provide that quick 'go to' case.

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