Overview
The Disclosure Pilot Scheme for the Business and Property Courts started on 1 January 2019 under Practice Direction 51U – Disclosure Pilot for the Business and Property Courts ("the DPS"). The DPS applies to existing and new proceedings in the Business and Property Courts with the exception of public procurement, admiralty, the Intellectual Property Enterprise Court, the Shorter and Flexible Trials Scheme, the fixed/capped costs regime and Part 8 Claims.
The Objectives
Disclosure is important to achieve a fair resolution of civil proceedings and, in recognition of this, the key objective of the DPS is to ensure that parties adopt a fair and reasonable approach to identifying and making available documents that are relevant to the issues in civil proceedings.
A further objective of the DPS is to encourage the greater use of technology including software and analytical tools such as technology assisted review software and techniques. The DPS requires that, for larger cases involving more than 50,000 documents, if technology assisted review is not used, the parties will need to explain why.
Applicability
One of the areas that has been the subject of recent case law is the applicability of the DPS. The case of White Winston Select Asset Funds LLC and another v Mahon and another [2019] EWHC 1014 (Ch) considered an application for specific disclosure under CPR 31.12 in proceedings where an order had already been made, prior to January 2019, for standard disclosure. Edwin Johnson QC sitting as a High Court judge concluded that, under the Courts' general case management powers, he could make the equivalent of an order which previously could have been made under CPR 31.12 to ensure standard disclosure obligations were met.
In the recent case of UTB LLC v Sheffield United Ltd and others [2019] EWHC 914 (Ch), the Court was also asked to consider the applicability of the DPS to proceedings commenced pre-January 2019. The case involved a shareholder dispute concerning the ownership of Sheffield United Football Club where an order for standard disclosure had been made before the DPS had commenced. Sheffield United made an application to challenge UTB LLC's claim to privilege together with a request for further disclosure.
At the hearing of the application, Sir Geoffrey Vos, Chancellor of the High Court, ordering the further disclosure, clarified that the DPS was intended to apply and does apply to all relevant proceedings in the Business and Property Courts whether started before or after 1 January 2019 even in cases where a disclosure order has been made before under CPR Part 31. As such, where the Business and Property Court determined any further applications for disclosure they would apply the principles laid down by the DPS in Practice Direction 51U. The Chancellor confirmed that the note in The White Book at Part 51.2.10 which suggested that the DPS would not apply in these instances was not correct.
Disclosure Duties
The DPS introduces a series of disclosure duties for the parties and their legal representatives. For parties, the duties arise if a party knows that they are, or may become, a party to proceedings which have been, or may be commenced. They include a duty to preserve documents, to search for documents in a responsible and conscientious manner, to act honestly and comply with any order for disclosure made by the Court, to disclose known adverse documents once proceedings have commenced regardless of any order and to take reasonable steps to avoid providing documents to the other party that have no relevance to the issues in the proceedings, so called "document dumping".
Legal representatives have separate duties including assisting the party they represent to meet its disclosure duties, preserving the documents and cooperating with legal representatives of the other parties to promote reliable, efficient and cost effective disclosure.
Requirements
The DPS provides for a new two stage disclosure process with limited, initial disclosure to be provided with the parties' statements of case and extended, additional disclosure to be given later in the proceedings, if ordered by the Court.
Initial Disclosure
When a party serves its statements of case it should now also provide Initial Disclosure, being disclosure of (i) key documents on which the party has relied in support of the claims or defences advanced in its statement of case and, (ii) key documents that are necessary to enable the other parties to understand the claim or defence they have to meet. Initial Disclosure does not require the parties to undertake a further search for documents beyond that which has already been undertaken for the purpose of the proceedings.
Initial disclosure is not required if it would involve a party providing the larger of more than 1,000 pages or 200 documents. Furthermore, Initial Disclosure can be dispensed with by agreement of the parties or by Court Order.
Extended Disclosure
Where parties seek further disclosure in addition to Initial Disclosure, or as an alternative to Initial Disclosure, the parties need to request Extended Disclosure from the Court. The parties are required to determine whether they wish to request Extended Disclosure and confirm this within 28 days of service of the final statement of case.
Parties seeking Extended Disclosure are required to complete a Disclosure Review Document setting out the proposed list of issues for disclosure, the disclosure model that is proposed for each issue, where the relevant information is held and how they are stored and the parties' proposals for searching the information including the use of technology.
The Court will only order Extended Disclosure where it is appropriate in order to fairly resolve one or more of the issues for disclosure. Extended Disclosure will be ordered by reference to the following five disclosure models:
- Model A – Disclosure of known adverse documents only.
- Model B – Initial Disclosure but with no page limit or documents limit.
- Model C – Request-led, search-based disclosure of particular documents or narrow classes of documents relating to the issues for disclosure.
- Model D – Narrow search-based disclosure of documents without narrative documents which are likely to support or adversely affect a party's claim or defence or that of another party in relation to the issues for disclosure. This model most closely matches standard disclosure under CPR Part 31.
- Model E – Wide search-based disclosure of documents which may result in the identification of other documents for disclosure.
All models require the parties to disclose any known adverse documents.
Any Extended Disclosure granted by the Court will be ordered by reference to a List of Issues for Disclosure agreed by the parties. The Issues for Disclosure are those key issues in dispute which the parties consider will need to be determined by the court with some reference to contemporaneous documents to ensure fair resolution of the proceedings. There can be different models ordered for the different issues in the proceedings.
The Claimant must prepare a draft List of Issues for Disclosure and serve the List on the other parties within 42 days of service of the final statement of case, and thereafter the parties are required to seek to negotiate an agreed List of Issues.
Conclusions
The DPS is an attempt to address the key concerns with standard disclosure particularly unwieldy costs and the scale of disclosure. The success of the DPS will depend on the Courts ensuring that the parties work together to agree a considered and proportionate approach to disclosure, closely aligned to the issues in the proceedings and utilising new technologies where appropriate. If this is achieved it is possible that the DPS could assist to reduce the costs and scale of disclosure. However, there is a risk that parties will routinely request disclosure under Model D and continue to adopt the same approach as that adopted for Standard Disclosure meaning the DPS will be of limited benefit.
