Wright Medical Australia Pty Limited v Johnston

HIS HONOUR: The proceedings before the Court concern, primarily, preliminary discovery. Consequential relief if an order is made is also sought.

By Summons filed on 6 October 2016, the Plaintiff, Wright Medical Australia Pty Limited, sought an order pursuant to Uniform Civil Procedure Rules 2005 (“UCPR”) rule 5.3, that the first Defendant, Colin Johnston (“Johnston”), the second Defendant, Bradley James Ryan (“Ryan”), and the third Defendant, CAB Medical Pty Limited (“CAB”), each provides discovery of “all documents that are, or have been, in their possession in the categories set out in Attachment A to this Summons.” The Plaintiff also sought an order in the nature of access for the inspection, and copying, of the discovered documents.

On 13 March 2017, that is two days before the hearing of the application, the Plaintiff sought to amend the categories of documents sought by providing an amended Attachment. The amended Attachment identified the following categories of documents being sought:

Needless to say, each of the Defendants has opposed the orders sought in the Summons and the production of any of the documents identified in the amended Attachment. Each submits that the categories of documents sought are too wide, and that if an order for their production were granted, it would be oppressive.

However, during submissions, counsel for the Defendants, without objection, tendered a letter dated 13 March 2017 (Ex. 1), which included the following passages:

The Plaintiff relied upon the affidavit, affirmed 5 October 2016, of Ms B C Roberts, the Country Manager for Australia of the Plaintiff (comprising 97 pages, with annexures), only part of one paragraph that was not read; an affidavit, sworn 30 September 2016, of Ms B J Christmas, a senior Product Specialist, employed by the Plaintiff (comprising 6 pages, with no annexures); and an affidavit of Ms Roberts, affirmed 9 December 2016, in reply. Each of the affidavits was read without objection and neither of the deponents were cross-examined.

The Defendants relied upon an affidavit of Johnston, affirmed 30 November 2016; an affidavit of Ryan, affirmed 30 November 2016; an affidavit, affirmed 28 November 2016, of Dr Peter Lam, an Orthopaedic Foot and Ankle Surgeon; and an affidavit, affirmed 28 November 2016, of Dr Andrew Wines, who is also an Orthopaedic Foot and Ankle Surgeon. Each of the affidavits was read, without objection, and none of the deponents were cross-examined.

I have taken some of the following fact outline from the Plaintiff’s submissions, as, for the purposes of the application (except where otherwise indicated), there appears to be no dispute regarding the outline: T5.19 – T5.20. Other facts I have taken from the affidavit evidence to which reference has been made. Unless agreed, or regarded as admissions by one, or other, of Johnston and/or Ryan, the facts to which I shall refer should not be taken as factual findings. The Court cannot, at this stage, reach any conclusion as to the likelihood of ultimate success at trial.

It is sufficient for the purposes of the application, if the evidence, although falling short of establishing all the ingredients of a prima facie case, might point sufficiently to the existence of a case for relief as to make it proper, in the interests of justice, that preliminary discovery be ordered so that proceedings for that relief could be brought.

Another reason for identifying the fact outline is to demonstrate the Plaintiff’s knowledge and its understanding of the claims for relief that might be brought, at least by the time of the commencement of these proceedings, and, certainly, by the date of the hearing of the application on 16 March 2017. Which of the facts will be able to be established if the matter proceeds to trial, no doubt, will depend upon admissions made in the pleadings, the evidence, ultimately, relied upon, and the cross-examination of witnesses.

The Plaintiff is the Australian arm of the Wright Medical Group, a global medical device company specialising in the design, manufacture and marketing of orthopaedic surgical devices for extremities and biologics.

In about September 2015, the Plaintiff acquired part of the business of Surgical Specialties Pty Ltd (“Surgical Specialties”) which is an independent distributor of medical devices, and which had been a distributor for Wright Medical products.

Immediately prior to the acquisition, Johnston and Ryan were both employed by Surgical Specialties.

Johnston had commenced employment with Surgical Specialties in April 2014. His job title was “National Business Development Manager M.I. Technologies - Biologics, Extremities & Critical Care Division”.

The letter of appointment dated 14 March 2014, pursuant to which Johnston had been appointed, included a clause headed “Non-solicitation/compete clause”, which provided:

It was a condition of Johnston’s employment with Surgical Specialties that he was required to sign a document entitled “Confidential Information Agreement” in the form attached to the letter of appointment. The relevant covenant in the document stated:

On 14 March 2014, Johnston signed the Confidential Information Agreement attached to his letter of appointment.

In connection with its acquisition of Surgical Specialties, by letter dated 1 September 2015, the Plaintiff offered employment to Johnston, which he accepted. His job title was “Business Development Manager - F&A (foot and ankle)”.

The Plaintiff’s offer of employment to Johnston included the following:

Johnston accepted the offer of employment and he commenced employment with the Plaintiff on or about 30 September 2015.

Notwithstanding that Johnston’s letter of appointment with the Plaintiff described his position as “Business Development Manager - F&A”, his position title, from the commencement of his employment with the Plaintiff, was “Marketing Manager, Foot & Ankle, Australia and New Zealand’.

The duties and responsibilities of the position of ‘Marketing Manager’ were essentially the same as those that Johnston had performed as ‘Business Development Manager’ at Surgical Specialties. According to the Plaintiff’s evidence, Johnston was responsible for leading the development of product marketing strategies and promotion programs and activities for foot and ankle products in support of the Plaintiff’s national sales targets and objectives.

A critical component of Johnston’s role was to establish and maintain, on behalf of the Plaintiff, a strong working relationship with key customers. The key customer relationships managed by Johnston included the relationship with:

Ryan commenced employment with Surgical Specialties on or about 12 May 2014. His job title was “Product Specialist - Biologics & Extremities”.

It was a condition of Ryan’s employment with Surgical Specialties that he sign a document titled "Confidential Information Agreement" attached to his letter of appointment (which was in the same terms as set out previously in respect of Johnston).

Ryan signed the Confidential Information Agreement attached to his letter of appointment on 14 May 2014.

In connection with its acquisition of Surgical Specialties, by letter dated 1 September 2015, the Plaintiff offered employment to Ryan in the position of “Product Specialist”. The Plaintiff’s offer of employment made to Ryan included the following:

The Plaintiff’s letter of appointment to Ryan included a “Non-solicitation/compete clause” and “Confidential Information Agreement” that was identical to that which was provided to Johnston set out above.

Ryan, also, accepted the offer made by the Plaintiff. He commenced employment with the Plaintiff on about 30 September 2015.

(At the hearing, the parties appear to have agreed that the relevant difference between the two offers was the position that each of Johnston and Ryan was to hold: T6.30 – T6.35. At the hearing, counsel for the Plaintiff stated that the offer of employment to each of Johnston and Ryan was conditional on the sale of Surgical Specialties to the Plaintiff, and that the employment with the Plaintiff was to commence on the same day as the business sale completed: T6.5 – 6.10. Nothing turns on these differences for the purposes of the application being dealt with.)

In the role of Product Specialist, Ryan was a sales representative, responsible for achieving sales revenue and market share targets for a designated territory by promoting, selling and supporting the Plaintiff’s products to medical and surgical specialists and other clinical professionals.

Like Johnston, Ryan’s role included establishing and maintaining, on behalf of the Plaintiff, a strong working relationship with customers. The Plaintiff submitted that Ryan, therefore, had an intimate knowledge of the products and also the product requirements of key clients of the Plaintiff.

In the course of his employment with the Plaintiff, Ryan was partly responsible for customer relationships with Dr Wines and Dr Lam. He was also required to provide product support to Dr Kaplan and to Dr Lunz, as well as being directly responsible for Dr Bradshaw.

Dr Lam, in the affidavit to which I have referred, deposed that Ryan saw him, occasionally, at St George Private Hospital, during most of 2015.

Johnston and Ryan attended the Plaintiff’s international medical sales conference, in Barcelona, in early February 2016. The Plaintiff asserts that, at the conference, each would have become aware of detailed confidential information belonging to the Plaintiff. It was put that “they attended there with high level people in the organisation, Wright Medical's Chief Executive, the President and marketing team and they were privy to commercially sensitive and other confidential information including [the Plaintiff’s] global sales plans”: T6.40 – T6.49.

It appears that there is evidence that Johnston and Ryan, in January 2016, prior to travelling to this conference, had confided in each other that they would be resigning from their role with the Plaintiff. This is a matter admitted by Ryan in his affidavit affirmed 30 November 2016 in which he states:

In his affidavit, affirmed 30 November 2016, Ryan deposed that over the first two weeks of February 2016, he and Johnston had decided to establish a company, namely CAB, to import medical devices and distribute them in Australia.

Johnston gave notice of his resignation the day after returning from the Barcelona conference, a matter not disputed by counsel for the Defendants. Johnston’s employment ceased on 15 March 2016 and Ryan’s ceased on 18 March 2016. On 22 March 2016, Ryan was observed attending at the operating theatre tea room at St Luke's Hospital where Dr Kaplan, was working.

CAB was registered on 18 February 2015, whilst Johnston and Ryan were both employed by Surgical Specialties.

The copy of the ASIC company extract relating to CAB, annexed to Ryan’s affidavit, reveals that CAB was registered a year earlier than had been deposed to (on 18 February 2015), and that there has been no change in the shareholding since that time. Counsel for the Defendants, at the hearing, accepted that the statement made by Ryan in his affidavit that CAB was established on the 18 February 2016 was a typographical error, as the copy ASIC search annexed to the first Defendant’s affidavit does clearly showed that CAB was registered on the 18 February 2015 (with the same error being made in the second Defendant’s affidavit as well – T9.11 – T9.29).

The Plaintiff submitted that the Court should infer that CAB was registered, on behalf of Johnston and Ryan, in February 2015, notwithstanding that a nominee entity (CABM Nominees Pty Ltd) was then its registered shareholder.

Johnston and Ryan became employees of CAB on 21 March 2016 and directors of CAB on 4 April 2016. Two days later, Johnston was observed at North Shore Private Hospital, where Dr Wines was operating, with a trolley of products, including “Novastep plates and screws”.

There was evidence that CAB had been active prior to February 2016 and that, whilst Johnston and Ryan were still in the employ of the Plaintiff, it had registered a number of medical devices on the Australian Register of Therapeutic Goods (ARTG), that were said to have been entered onto the Register between 2 April 2015 and 9 November 2015.

The Plaintiff also directed attention to the details on the ARTG register, showing Johnston’s home address as the contact details for CAB. It was submitted that this demonstrated that Johnston, during the course of his employment with the Plaintiff, was assisting CAB to obtain registration of a range of medical devices.

Johnston deposed that his role with CAB “was limited to logistics”. However, in a copy of Johnston’s “LinkedIn Profile” (as at 6 December 2016), he described himself as “Director of Sales CAB Medical”.

Ryan also deposed that he had the responsibility for CAB’s finance and accounts, liaising with hospitals, regulatory affairs and dealing with suppliers, particularly Novastep SAS.

In the period between 2 April 2015 and mid-February 2016, by which date each of Johnston and Ryan had resigned from his employment with the Plaintiff, CAB was actively engaging in business. It appears to have registered at least 14 orthopaedic medical devices on the ARTG and Prostheses List Advisory Committee (PLAC) databases as a “sponsor”.

Whether the medical devices included a set of surgical instruments that appear to be a copy of a set of unique surgical instruments originally designed specifically for ‘minimally invasive’ surgery for a company that the Plaintiff bought, and whether CAB’s product portfolio also included a product called ‘IFactor’, which it said was a cheaper version of a biologic product called ‘Augment’, currently sold by the Plaintiff, will be a matter for debate at any trial.

Johnston deposed in his affidavit affirmed 30 November 2016, that CAB is the exclusive distributor for Novastep SAS within Australia. Novastep SAS is a subsidiary of Amplitude Surgical, a global orthopaedics company.

A press release issued on 23 November 2015, by, or on behalf of, Amplitude Surgical, when both the first and second Defendants were employed by the Plaintiff, stated that Novastep’s foot product range would be marketed through “an exclusive Australian distributor”. Whether CAB, and Novastep, had been negotiating, prior to 23 November 2015, in relation to the terms of the distributorship, will be a matter for debate at any hearing.

In an affidavit affirmed on 28 November 2016, Dr Andrew Wines deposed that in, or about, April 2016, he had contacted CAB “to enquire as to the supply to me of medical devices”. He also stated that “since that time, I have continued to purchase medical devices from the third Defendant”.

There is some evidence that Dr Wines had sent a text message, on 20 March 2016, to advise that he was moving his business from the Plaintiff to “previous Wright reps [who] have served me very well for a long period”. If proved, what flows from his statements will be a matter for debate at any hearing.

In his affidavit affirmed on 28 November 2016, Dr Lam deposed that Ryan “saw me occasionally at St George Private Hospital” during most of 2015. Dr Lam states that it was also in, or about, mid April 2016, that he contacted Ryan and enquired as to “whether the Third Defendant would be able to assist in designing and developing [a medical device]…..I understood the Third Defendant had an exclusive arrangement with the French manufacturer Novastep SAS”. (It is not clear from his affidavit, how Dr Lam came to understand that CAB had such an arrangement.)

Dr Lam also stated that it was not from until “about the end of April 2016” that he began purchasing items from CAB. If proved, what flows from these matters will be a matter for debate at any trial.

Finally, I should refer to Paragraphs 32 to 35 of Ryan’s affidavit (which is in identical terms to Paragraphs 27 to 30 of Johnston’s affidavit):

There was no response to any of the paragraphs referred to above in the Plaintiff’s affidavit in reply.

As stated, neither of the deponents was cross-examined about any of the matters asserted. However, I am not sure, on this application, whether any of the matters asserted, other than, perhaps, sub-paragraph (b), objectively, gives rise to reasons for concern. Needless to say, however, for the purposes of the application, I have not disregarded the stated concerns.

UCPR rule 5.3 provides:

In Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2008] FCAFC 133, which concerned the [then] relevantly identical Federal Court Rule, the full Federal Court stated at [36]:

Another object is “….to avoid the commencement of ‘speculative suits’ and, instead, ‘to advance the administration of justice [by enabling] a prospective plaintiff ... to make an informed decision whether to proceed or not upon proper material before issuing his proceeding”: BJ Bearings Pty Ltd v Whitehead [2016] VSC 44 at [19].

There was no dispute that the Plaintiff’s application was supported by an affidavit stating the facts on which the Plaintiff relied, and that it specified the kinds of documents in respect of which the order is sought, and that the application, together with a copy of the supporting affidavits, had been served personally on the person to whom it is addressed.

Thus, it is necessary to consider, before the Court will order preliminary discovery, whether the application satisfies the three threshold requirements of UCPR rule 5.3(1), namely, (a) the applicant may be entitled to make a claim for relief from the court against a person (the prospective defendants) but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against them; (b) the prospective defendants may have, or have had, possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief; and (c) inspection of such a document would assist the applicant to make the decision concerned.

Each of the prerequisites set out in rule 5.3(1) must be satisfied before the discretion is enlivened. Even then, the scope of preliminary discovery which may be ordered in the exercise of discretion with respect to any of the potential claims cannot exceed those documents that relate to the question whether or not the applicant is entitled to make a claim for relief.

Section 3 of the Civil Procedure Act 2005 (NSW) relevantly provides that “"claim for relief" includes…(c) a claim for the recovery of damages or other money … (e) a claim for the determination of any question or matter that may be determined by the court, and (f) any other claim (whether legal, equitable or otherwise) that is justiciable in the court”. (By virtue of s 11 of the Interpretation Act 1987 (NSW), that definition applies to UCPR rule 5.3.)

In RinRim Pty Limited v Deutsche Australia Limited [2013] NSWSC 1762, I wrote, at [38] – [49]:

In Liu v The Age Company Limited [2016] NSWCA 115, in exercising the court’s discretion to grant preliminary discovery, Beazley P, noted, at [3], that:

In Yes Family Pty Ltd v Sphere Healthcare Pty Ltd [2016] NSWSC 393, Slattery J, at [20], stated that an application for preliminary discovery cannot be used to conduct a trial of the merits of the prospective case.

Darke J pointed out in Bianca Hope Rinehart v Georgina Hope Rinehart [2015] NSWSC 205 at [31], that the:

Finally, because it is relevant to the present case, what was written in BJ Bearings Pty Ltd v Whitehead at [19], should also be remembered:

Counsel for the Plaintiff submitted that:

Counsel for the Defendants submitted that:

The first question to be addressed is whether it "appears" that the Plaintiff "may be entitled to make a claim for relief from the court against a person". I have outlined the broad facts asserted by the Plaintiff.

I am satisfied that the Plaintiff may be entitled, in the requisite sense, to make a claim against each of the Defendants. In this regard, there appears enough in the evidence to conclude that the claims that may be made include those referred to in the submissions for the Plaintiff to which reference has been made above.

In particular, on the available information before the Court on the application, there appear to be sufficient grounds to bring a claim that there has been a breach of fiduciary duty by Johnston and by Ryan, for example, by advancing the interests of CAB, and that there was a sufficient connection between each of them and CAB. CAB was an entity which appears to have been in competition with the Plaintiff and each of Johnston and, to a lesser extent, Ryan, appear to have participated, as it were, or been involved, in, CAB in 2015, whilst employed by the Plaintiff: T11.25 – T11.33.

There is also enough to enable the Plaintiff to analyse the facts overall, to see if there may be available defences, and to attempt to make some assessment of the strength of those defences. These have already been outlined in part.

The Plaintiff has conducted investigations that have enabled the Court to identify, in some detail, the facts that the Plaintiff had available at the commencement of the hearing.

For the reasons advanced by the Defendants, I am of the opinion that the Plaintiff, some time ago, expressed the view that it had potential claims available to be made against each of the Defendants. In this regard, it stated, in the correspondence sent to the Defendant’s solicitors on the 13 April 2016, that:

I do not accept that the words “such actions may include” or “the company may proceed” suggest any real doubt about whether the Plaintiff may have been entitled to make a claim for relief.

This conclusion is strengthened by the preceding statement in the correspondence:

In another letter dated 22 April 2016, sent by the Plaintiff’s solicitors to the Defendant’s solicitor, it was noted that as there had not been a response (other to simply deny the allegations made by the Plaintiff) to the substantive issues raised in their earlier letter, that:

In a letter dated 2 May 2016, the Plaintiff’s solicitors stated:

In a letter dated 29 July 2016, the Plaintiff’s solicitors repeated much of what had been written earlier in respect of Johnston and Ryan, and added:

I should also note the acceptance by counsel for the Defendants, at T35.11 – T35.12, that:

Much in this regard turns on the conclusions that are drawn from the correspondence sent by the Plaintiff’s solicitors to the Defendant.

As Hidden J noted in Kevin Young v The Neil Jenman Group Pty Limited [2015] NSWSC 1908 at [33]:

Furthermore, in Glezer v Deals.com.au [2014] VSC 202, in considering the weight to be given to the correspondence sent by the plaintiff’s solicitors, that was submitted by the Defendants to point to the conclusion that the plaintiff had already unequivocally decided to commence a proceeding against each of the defendants, Vickery J stated at [44] – [46]:

The terms of the correspondence to which I have referred, are robust, in that they convey the Plaintiff’s demands as to the remedial measures each of the Defendant’s should undertake, and the action the Plaintiff contemplated if they did not do so.

Having reached that conclusion, there are a number of matters, however, about which the Plaintiff does not have sufficient information to make the necessary decision on whether to commence proceedings. These matters go to the loss and damage, if any, sustained by the Plaintiff and include:

Whilst the correspondence asserts “loss and damage (by way of loss of business)” having been suffered, it does not assert that the Plaintiff has been able to quantify the loss and damage attributable to the conduct of any of the Defendants.

The next question is whether the Plaintiff has been "unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant".

I am satisfied that the Plaintiff has made reasonable enquiries to obtain information. In circumstances where the Plaintiff has established that it made inquiries, of each of the Defendants, putting him and it on notice of the reasons for the inquiries, I consider that, given the liberal construction to be accorded to UCPR rule 5.3, that the second gateway is satisfied.

I do not accept the Defendants’ submissions relating to enquiries that may have been made by the Plaintiff approaching its former customers. If each is no longer a customer of the Plaintiff, it is unlikely that each would assist the Plaintiff in providing information concerning it ceasing to be its customer.

In this regard, I accept the Plaintiff’s submission, that “[T]he prospect that you would ask an existing customer, or a former one who has withdrawn their business relationship from you already and sided with the prospective defendants, the prospect that one would need to make inquiries of those, at the very least is commercially unrealistic”. T19:10 – 19:46.

The word “reasonable” in the rule, prefacing as it does the word “enquiries” is important.

It must be remembered, also, that, now, two of the existing customers have given affidavits, read in these proceedings, that contain information as to what each did and did not do.

The next question is whether it appears that any of the Defendants may have, or have had, possession of documents or things that can assist in determining whether or not the Plaintiff is entitled to make such a claim for relief, and would assist the Plaintiff in making such a decision: UCPR rule 5.3(1)(b) and (c).

Clearly, the Defendants would have the documents going to each of the matters I have identified above, particularly going to what might be established to be the quantum of loss and damage the Plaintiff may have suffered, and the connection between the conduct of one, or more of the Defendants, and the nature of that loss and damage.

The next question is whether there are discretionary reasons for refusing the application in respect of all, or some, of the documents sought. Ultimately, the discretion would only be exercised in favour of the Plaintiff when it is in the interests of justice to do so.

On the matter of discretion, it is necessary to refer to the following passage during the Defendant’s submissions at T35.48 – T36.17:

I accept that one of the matters that the Court will also take into account in exercising the discretion in making an order, is whether the application is brought in order to obtain the information that is sought for the purpose of determining whether the applicant is entitled to make a claim, or whether it is brought for a collateral purpose: Aus Steel Pty Ltd v Marco Properties Pty Ltd [2014] NSWSC 550, at [5].

I am not satisfied that the Plaintiff has a collateral purpose. However, in order to avoid any such suggestion, a confidentiality regime would be appropriate, in order to guard against the possibility that the Plaintiff will learn information of a confidential and, perhaps, commercially sensitive kind.

Perhaps, initially, any such risk can be avoided by limiting inspection of the any necessary discovered documents to nominated legal representatives of the Plaintiff, on terms that they will not, until further order, show any discovered document or disclose any information derived from a discovered document to the Plaintiff: B J Bearings Pty Ltd v Whitehead at [40].

A further relevant matter on the exercise of discretion is that the Plaintiff did not provide any undertaking to the Court, or otherwise, to pay the reasonable costs of any of the Defendants for the compilation of the documents and the preparation of any list of documents to be discovered: T28.16 – T28.31. On this question, it seems to me, that the scope of the categories of documents is also important.

As a condition of the grant of preliminary discovery, the Plaintiff should also give an undertaking to pay the reasonable costs for the compilation of the documents and the preparation of any list of documents to be discovered.

The Defendants submitted that the Court should deal with the application based upon the width of documents sought, rather than allowing the parties an opportunity to narrow the categories of documents that should be provided by each of the Defendants. With respect, I disagree, and I propose to allow a short period of 14 days, for the parties to determine the categories of documents, and if they are unable to, then to provide the Court with competing categories. The competing categories will then be dealt with in Chambers and the parties will be informed of those categories.

In this regard, the parties, and the legal representatives, should remember s 56 of the Civil Procedure Act 2005 (NSW) and their obligations thereunder.

For all these reasons, the Court is satisfied that the Plaintiff does not have sufficient information to make a decision whether to commence proceedings, in that it is unable to determine whether the cost and risk of litigation is worthwhile, and to determine the extent of the likely quantum of any damages award. The discretion given to the Court pursuant to UCPR rule 5.3 should be exercised in favour of the Plaintiff because it is in the interests of justice to do so.

Yet, preliminary discovery should only be given by each of the Defendants in respect of the extent of any breach of the type referred to by the Plaintiff. It should also go to the question of the quantum of any damages to which the Plaintiff may be entitled. Any discovery of documents should be limited to these issues, remembering that no more than that which is necessary, to overcome the insufficiency of information already possessed by the Plaintiff to enable a decision to be made whether to commence a proceeding, should be ordered.

Perhaps, there would be utility in the Plaintiff revising, with more precision, the categories of documents and producing a list of documents that more closely defines the categories of documents for discovery going to the matters to which I have referred. The list should be pragmatic, manageable and more focused.

The parties are to provide either agreed, or competing, draft orders to give effect to these reasons within 21 days of the date of this judgment, or such further time as may be directed having regard to the likely need for a confidentiality regime, including as to the terms of the preliminary discovery order and as to costs.

I should say in regard to costs that my tentative view, is that each of the parties has been partially successful – the Plaintiff succeeding in obtaining an order for preliminary discovery in respect of some matters, and the Defendants being successful in limiting the categories of documents to be provided. I do not think that the fact that several days before the hearing the solicitors for the Defendants provided a limited category of documents is relevant to the order for costs, because of the terms of the letter proposing that limited basis.

If agreement cannot be reached on costs, I shall decide that issue also in Chambers.

Perhaps, also, it may be wise for the parties to get together and see if they can solve their disputes generally without having to spend any more money on legal costs.