Herbert Smith defends disclosure record in Equitable case

Equitable Life’s lead counsel Iain Milligan QC today (4 May) rebuffed claims that instructing solicitors Herbert Smith had failed to carry out a full disclosure exercise in preparing for the assurance society’s claim against former auditors Ernst & Young (E&Y).

Brick Court Chambers’ Mark Hapgood QC made the claims yesterday on behalf of E&Y. He is instructed by Barlow Lyde & Gilbert.

Today Milligan, head of 20 Essex Street Chambers, countered Hapgood’s arguments by saying that Herbert Smith had taken a “reasonable approach” to the Civil Procedure Rules on disclosure, and had disclosed all documents relevant to the case.

Four new documents from Denton Hall, Equitable Life’s former legal advisers, were introduced into court. Three of them had been discovered by a witness in her own files in preparation for giving evidence. Milligan said it was “unfortunate” the documents had not been found by Herbert Smith, but pointed out the firm holds 140 boxes of Denton Hall documents in storage.

Mr Justice Langley said: “There is something unsatisfactory about a witness giving evidence soon where she is choosing documents.”

Speaking for more of the director defendants, Laurence Rabinowitz QC and Peter Leaver QC, both of One Essex Court, added their concerns to Hapgood’s. Both said that requests for disclosure had been refused, with Leaver saying: “[Herbert Smith] have simply not complied with requirements under the Civil Procedure Rules.”

Litigant-in-person Peter Martin suggested that as documents relating to Equitable’s claim of misselling had not been disclosed the society should abandon that part of the case.

The parties will consider the issues relating to disclosure further. Despite the time involved, E&Y are asking for a full disclosure exercise to be carried out.