Summary

A High Court claim for delivery up of documents pertaining to a property management agreement was struck out where the claimant had counterclaimed for essentially the same remedy in respect of the same dispute in ongoing county court proceedings brought by the defendant, in which discovery was imminent. The costs of the instant claim were out of all proportion to what it sought to achieve.

Facts

The applicant applied in its claim against the respondent for an interim order for the delivery up of goods, namely documents, under CPR r.25.1(1)(e) or inspection under r.25.1(1)(c)(ii).

The applicant was the management company of a substantial property containing 214 flats and a commercial unit. Between 2011 and 2017 the respondent had been its appointed managing agent. The appointment ended in dispute. The respondent began county court proceedings against the applicant for the recovery of £22,879 in alleged outstanding management fees. The applicant counterclaimed for breach of the management agreement, alleging that the respondent had failed to hand over all the documents it was required to provide, including those that were essential to maintain the safety and welfare of the property's inhabitants. T the applicant brought the instant claim for specific performance by the respondent of its obligation under the management agreement to hand over certain documents, or an order under the Torts (Interference with Goods) Act 1977 Act s.4 for delivery up of documents created by it in the management period. In the county court action the respondent was due to provide discovery three days after the hearing of the instant application, with inspection 14 days later. The respondent assured the court that discovery in the county court action would extend to all documents in its control covered by the management agreement.

The applicant submitted that disclosure in the county court proceedings would be more limited in scope.

Held

The applicant's submission was unsustainable. The documents relating to the claim in the county court would include all those documents that were or had been in the respondent's possession. It was clear that the relief sought in the instant proceedings was the same as that sought in the county court. Further, the facts and matters relied on were materially identical. There was no real explanation why the interim order sought in the instant proceedings had not been sought in the county court proceedings: all that the applicant's solicitor said was that since the close of pleadings there had been no progress in the county court so she had taken the view that they were more likely to have success in the High Court. The instant application served no useful purpose. Within days the applicant was going to receive extensive disclosure regarding the same allegations about the respondent not handing over documents in accordance with the management agreement. The practical effect would be to cover the same ground as the county court proceedings. In particular the disclosure would cover all categories of documents regarding the management of the property. The instant application would not get those documents to the applicant any faster. The High Court claim had been brought for the purpose of the instant disclosure application. It should be struck out under CPR r.3.4(2)(b), not on the basis that it was relitigating a matter already decided, because the county court proceedings were ongoing, but because its cost was out of all proportion to what it sought to achieve, Henderson v Henderson [1843-60] All E.R. Rep. 378 considered, Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75 followed. There was no legitimate advantage to staying the instant proceedings until the county court action was finished.

Application refused, claim struck out