Overview

1. This is an illuminating decision, as to how the Disclosure Pilot will apply to pre-January 2019 cases.

2. The case was commenced before the introduction of the Disclosure Pilot into the Business and Property Courts. An order for standard disclosure had been made, before the commencement of the Disclosure Pilot.

3. Nevertheless, in considering an application for further disclosure in April 2019, Sir Geoffrey Vos, Chancellor of the High Court, considered that the Disclosure Pilot applied, and would do so for “all relevant proceedings subsisting in the Business and Property Courts, whether started before or after 1st January 2019, even in a case where a disclosure order was made before 1st January 2019 under CPR Part 31” (judgment at [17]).

Background

4. The case is a hotly-contested shareholder dispute within the ownership structure of Sheffield United Football Club; the matter is due to come on for trial in a few weeks.

5. In this interlocutory application, one of the parties (Sheffield United Limited) was (inter alia) challenging another party’s (UTB LLC) claims to privilege in respect of certain documents, and seeking disclosure of other defined classes of documents.

Application for Disclosure: the Disclosure Pilot Considered

6. The claim had been issued prior to the commencement of the pilot on 1 January 2019. An order for standard disclosure had already been made, when the application challenging privilege and seeking further disclosure came to be heard in April 2019.

7. Paragraph 1.3 of PD51U states that the “pilot shall not disturb an order for disclosure made before [1 January 2019]. There had, therefore, been some doubt as to whether the pilot applied in such cases, where there was a pre-pilot disclosure order. Indeed, the editors of the 2019 White Book had stated at 51.2.10 that “The Pilot does not apply to any proceedings where a disclosure order had been made before it came into force unless that order is set aside or varied” [emphasis added].

8.This decision makes clear that the disclosure pilot does indeed apply in all subsisting proceedings within the Business and Property Courts, regardless of when those proceedings began. The Chancellor said, at [15], that the above interpretation in the White Book, of paragraph 1.3 PD51U, was wrong: he stated that although a pre-existing order will not be disturbed by the commencement of the pilot, the pilot will apply to all existing and new proceedings in the Business and Property Courts.

9. At [24] the Court added that simply because paragraph 18 and other paragraphs of the pilot refer to concepts (like “Extended Disclosure” and “Issues for Disclosure”) which did not exist before 1st January 2019, the pilot will still apply to all cases subsisting in the Business and Property Courts after that date. The Chancellor added that “the Court will interpret the new PD51U in a way that makes it work as effectively” in respect of applications for disclosure in proceedings issued after January 2019, as it will in subsisting cases with pre-existing disclosure orders. Therefore, if an application for further disclosure is made in such proceedings, it will be governed by PD51U, rather that CPR Part 31.

10.In deciding the privilege and disclosure questions in this case, the Court therefore applied the relevant paragraphs of PD51U:

a. When considering the challenge to the assertion of privilege Court therefore turned to paragraphs 14 and 16 of PD51U: judgment at [65] and [72] . For example, paragraph 14.3 PD51U states that the Court may inspect a document over which privilege has been asserted if inspection is “necessary” to determine whether the claimed right or duty to withhold disclosure exists, or to determine the scope of that duty or right;

b. When considering whether to order Extended Disclosure, the Court considered the reasonableness and proportionality of the application (paragraph 2 PD51U), and the continuing obligation for legal representatives to act honestly when giving disclosure, and to conduct a review to satisfy themselves that the claim to privilege is properly made (paragraph 3 PD51U): judgment at [77].

11. By way of commentary on the pilot generally, the Court at [78] was at pains to emphasise that the requirement under the pilot for parties to co-operate and act with proportionality is “of the greatest importance”. The Chancellor also stated at [75] that “the introduction of the Pilot was intended to effect a culture change. The Pilot is not simply a rewrite of CPR Part 31. It operates along different lines driven by reasonableness and proportionality […]”.

Commentary

12.It is therefore clear that, even in a case where an existing order for disclosure has been made, when determining any further applications for (extended) disclosure, the Business and Property Courts will apply the principles laid down in PD51U, with which parties will be expected to have complied.

13. As to the practicalities of that, the Court at paragraph 23 stated somewhat Delpically that:

[…] parties to cases like this, who want to apply to the court for Extended Disclosure under PD51U, should give detailed thought to the new rules and specifically to the way in which they will affect their application.

14. Does that extend to completion of the Disclosure Review Document? That was not made expressly clear; the answer seems to be that it will be necessary to the extent required to determine the application. Here, the List of Issues for Disclosure (rather than a full DRD) was required: the Court considered, at [110], that it would only order Extended Disclosure where that is appropriate to fairly resolve one or more of the Issues for Disclosure. And the Chancellor had noted at [22] that whilst parties had given no advanced thought to the production of ‘Issues for Disclosure’, ‘fortunately’ such lists of issues were ultimately produced, which enabled the court to deal with the applications.

A copy of the judgment can be found here