第10章 A Discovery Dispute

The application was issued on the sixth of April 2026 and disclosed on the sixth of May and the first round of documents came in on the fourth of June, and on the fourteenth of July 2026 I applied for an order requiring Hale and Marchetti to disclose the document I have been calling the missing letter, and on the twenty-first of July 2026 the judge refused it, and I lost, and I want to describe the loss properly because I have spent three weeks being angry about it and I have now worked out that I was angry about the wrong thing. The application was called the application of the twelfth of July and it was heard on the twenty-first of July in about fifty minutes, in a room with four rows and six people in them, and Mr Lowe opposed it in about nine minutes and I argued for twenty-two and the judge gave me eleven. Here is what I asked for. I asked for an order under section 78 of the Civil Procedure Rules requiring Hale and Marchetti, if they have it, to disclose a letter dated the fourteenth of October 2017 from Fairweather Auman, and if they do not have it, to admit that they do not have it. That second limb is the whole case and I want to explain why, because nobody in that room, including me, thought about it in those terms until about the fortieth minute. The first limb is ordinary. It is a=request for a document. You ask and either it turns up or it does not. The second limb is different. An admission is a different animal. If the parties are willing to admit a negative, then a document either exists in somebody's hands or it does not, and the court can proceed on the basis that it does not, and everything that follows from that is available. And here is what happened. Mr Lowe said three things. He said, first, that he could not admit a negative about a document in his client's hands, because his client is a firm of sixty-one solicitors and the personal knowledge of a partner is the personal knowledge of the firm, and the firm holds files in a bank in another city, and to admit that a document does not exist anywhere in the firm's holdings is a statement about four hundred thousand pages of closed files, and he cannot make it, and he will not. I have thought about that for three weeks and I think he was right. Not right in the sense that I agree with him. Right in the sense that I now think my application was badly framed, and that anybody of his experience could see from the first thirty seconds that it was badly framed, and that I did not see it, and that the reason I did not see it is that I had been reading documents in boxes for four months and I had stopped thinking about the shape of my own application. He said, second, that if the applicant wants to know whether the document exists, the applicant can ask the people who would know, and the people who would know are the executor and the executor's solicitors, and the applicant's own solicitor has already established — in the fourth paragraph of his own skeleton of the twentieth of April, in a document I wrote — that the document was not in the executor's file. And I did write that. I want to record it and I want to record what it means. I wrote, in April 2026, in my own skeleton argument, in a paragraph about the provenance of the codicil, the words: "The 2011 Settlement correspondence is not in the executor's file and the applicant has made enquiries of the executor and of the executor's solicitors." That is a statement of fact. I have verified it. The executor's solicitor was asked and said no. It is true. And I made that statement in April about a document that I did not know existed, in a paragraph about a different document, and I did not know that Mr Lowe was going to use it in July to refuse me an order, and he did, and it was in my own document, and he had read my document, and he found it in about four minutes, and he had it ready before I stood up. That is what twenty-two years does. I have written that sentence as though I have lost something. I have not. I have been beaten in an argument about the proper form of an application by a man who does this nine times a year, and the only thing that has gone wrong is that I lost, and losing is a thing I had not done since qualifying. He said, third, and this is the sentence I have gone back to most: "My learned friend has been in my client's building. I do not say that unkindly. I make no accusation. But he has been in a corridor, and a street, and a café, and a hedge, and my client has been in none of them, and if my client's files hold a document my client has never seen, then the reason will be that my client's predecessor held it, and my client's predecessor is dead, and I am instructed that my client is not to be in the position of having to answer for four hundred thousand pages of a dead man's files." And then the judge said: "Mr Lowe, is the document in your client's files?" And Mr Lowe said: "I do not know, my Lady." And she said: "Is it in your client's predecessor's files?" And Mr Lowe said: "I do not know, my Lady." And she said: "Then you have both told me that you do not know, and neither of you is going to find out before the eleventh of August, and I am going to give you the eleventh of August, and if you cannot find it by then I will decide this application on the material I have." And that is it. That is how it ended. I lost, and I did not lose narrowly, and I did not lose on the law, and I have been three weeks angry about a thing that happened in twenty-nine seconds at the end. Here is the part I have not been able to put down. Mr Lowe got me to say, in a room, in front of a judge, on the twenty-first of July 2026, that I had been in my client's building, and that I had been in a corridor, and a street, and a café, and a hedge. I did not have to admit that. Nobody asked me. I did not have to volunteer it. And in the ninety seconds after he had finished, I stood up and I said it, because I thought I ought to, and I do not know why I thought I ought to, and I have been unable to work out whether it was candour or panic. I have been in this building nine times since. On the seventeenth of June, on the eleventh of July, and once in July to serve a witness statement on a clerk who had to be found. That is the whole of the physical record. It is not a secret. It is in a file somewhere at Brannock Vey, because Deborah types everything, and Deborah is the reason this case has an accurate record of the nine visits and their dates and their durations, and I have not asked her to leave any of it out, and I would not. I want to be careful here, because I have read a man from a newspaper's draft of this case, and he has decided that I went into Fairweather Auman in Hallam Row and let myself in. I did not. I was let in, by a man called Peter Selby, in answer to a question I answered honestly and without any concealment, on the nineteenth of March, in a corridor, in a building I had every right to be in because a dead man's partner was making time for me when he had no obligation to. And Selby has gone and is not a witness, and I have not taken his statement, and I have not pursued him, and I have not told anybody what he said to me in that corridor, and I am going to go on not telling anybody, and that is not candour. That is the one thing in this case that I am keeping.