EWHC 914 (Ch)
This case was one of the first to discuss the provisions of the new Practice Direction 51U (“PD51U”) or the “Disclosure Pilot for the Business and Property Courts” (the “Pilot”), which came into effect in January 2019. What is interesting is that Sir Geoffrey Vos at the outset made it quite clear that the Business & Property Courts, which include the TCC, expect parties to cooperate during the disclosure process:
“This dispute has generated thousands of pages of inter-solicitor correspondence, and a dispiriting volume of mistrust. As I said repeatedly in the course of argument, the parties will need to keep proportionality in the forefront of their minds as matters proceed. The Business and Property Courts are indeed willing and able to resolve the most complex of commercial disputes. But the parties must focus on the issues that require resolution, and not allow themselves to take every point, however small, nor to permit their mistrust of their opponents to become the driving force behind the litigation. There is, I am afraid, a danger of that here. The court expects the parties to cooperate to allow it to achieve a just, expeditious and proportionate resolution of the real commercial issues that separate them. Court proceedings are not a stage for a grudge match.”
Part of the case related to “Extended Disclosure.” The basic idea behind Extended Disclosure is that the parties must make a request for the type of disclosure they are seeking. This is for consideration at the first Case Management Conference. The Judge noted that the introduction of the Pilot was intended to effect a culture change. The Pilot operates along new and different lines driven by reasonableness and proportionality, with disclosure being directed specifically to defined issues arising in the proceedings. First they must seek to agree the “Issues for Disclosure”, essentially those issues that need to be determined by the court by reference to contemporaneous documents, for there to be a fair resolution of the claim.
Then consideration needs to be given to what type of model for Extended Disclosure, is most appropriate. It may well be Model C, which is similar in style to the Redfern Requests in International Arbitration, where parties ask for the disclosure of particular documents or classes of documents. In the case here, the Judge noted that in deciding whether to allow Extended Disclosure, the court has to consider whether the application is “reasonable and proportionate having regard to the overriding objective” and that the requirements for the parties to cooperate and to act with proportionality are of the greatest importance:
(1) Paragraph 18.2 of PD51U provides that “[t]he party applying for an order under paragraph 18.1 must satisfy the court that varying the original order for Extended Disclosure is necessary for the just disposal of the proceedings and is reasonable and proportionate”.
(2) Para 3.2(3) provides that there is an obligation “to liaise and cooperate with the legal representatives of the other parties … so as to promote the reliable, efficient and cost-effective conduct of disclosure”.
(3) Para 7.3 emphasises that the Issues for Disclosure are “only those key issues in dispute” and “does not extend to every issue which is disputed in the statements of case by denial or non-admission”.
(4) Para 6.3 makes clear that the court will only make an order for Extended Disclosure where it is persuaded that it is appropriate to do so in order fairly to resolve one or more of the Issues for Disclosure.
The Judge was concerned that neither side had taken this sufficiently seriously. Extended disclosure was not:
“something that should be used as a tactic, let alone a weapon, in hard fought litigation. It is all about the just and proportionate resolution of the real issues in dispute.”