The final part of this blog series takes a look at a key case decided during the first year of the Disclosure Pilot Scheme (“DPS“) and considers the future of Disclosure after the DPS comes to an end in December 2020. Previous parts of the series can be found here: Part 1 and Part 2.
Parties should try to agree disclosure methodology and terms in advance
An application for extended disclosure was refused by the Court in Agents’ Mutual v Gascoigne Halman Ltd and another  EWHC 3104 (Ch). After standard disclosure was conducted, the claim was amended and the Claimant applied for an order for further disclosure on the basis that the electronic search should be conducted again with additional search terms and date ranges under paragraph 17 or 18 of PD51U. The Defendants had reduced more than 2 million documents to around 30,000 by reference to dates and key terms and 95 documents were then disclosed following a manual review. The Claimants alleged that the electronic searches should be repeated with additional search terms and date ranges.
It was held that the application was misconceived as the documents sought were not relevant to the issues in dispute in the claim. The fact that only 95 documents were disclosed did not illustrate that there was a deficiency in the disclosure process. The complaint that the search terms were ‘plainly too narrow’ also essentially misunderstood the purpose of keyword parameters. It was noted that the parties had not engaged with one another to agree a search methodology and search terms, which was a failing on both sides.
This decision emphasises the collaborative approach that the DPS is attempting to introduce. Courts will scrutinise an order for further disclosure to ensure that it is reasonable and proportionate rather than make further orders that result in copious amounts of additional documents being disclosed. Parties should also work together to establish a search methodology and search terms before carrying out a review as it is the “manual review that costs time and money, not the multiple re-runs of electronic searches”.
The future of disclosure
The DPS is set to end on 31 December 2020 and it is not yet clear whether it will become a permanent fixture of the Business and Property Courts (as the Shorter and Flexible Trials pilot scheme did in October 2018). However, the rules do specify that the DPS will continue to apply at the end of the pilot period to any proceedings to which it applied at that point (paragraph 1.6 of PD51U).
In the meantime, it is anticipated that further cases will be brought before the Courts on the issue of disclosure under the DPS, which will hopefully bring more guidance on the interpretation and practicalities of the DPS. The general feedback on the scheme so far has been positive and it is thought that even if the DPS is not implemented permanently, the Courts will be keen to streamline the disclosure process, potentially using learning points from the DPS in doing so. Whatever the outcome of the DPS, it is likely that the future of disclosure will be simplified and in the majority of cases, will no longer involve the disclosure of tens of thousands of documents for lawyers to sift through.