Court considers how disclosure should be carried out

The defendants were ordered to give standard disclosure under CPR r31 (and hence their disclosure exercise did not fall within the new pilot scheme). The claimant complained that Form N265 (the List of Documents) had not been completed properly and applied to court for a further order.

The main issue raised by the claimant was that the defendants had failed to explain the search parameters or methodology which they had applied (dates, locations and categories of documents). For example, there had been no explanation as to how emails had been harvested and assessed for relevance. No Electronic Disclosure Questionnaire (Form N264) had been supplied either.

The defendants countered that they had complied with their disclosure duties by stating in the disclosure statement that they had carried out a reasonable and proportionate search. That argument was rejected by Master Clark. He accepted the claimant's argument that "the disclosure list should enable the court and the opposing party to evaluate the adequacy of the search carried out. Disclosure is a transparent, not an opaque process. This is clear from CPR 31.6(a), which requires a party in their disclosure statement to set out the extent of the search which has been made to locate documents which they are required to disclose".

He was also critical of the failure to complete the EDQ (which is not a compulsory document): "Much of the time and expense incurred in respect of disclosure in this case could have been avoided if the Additional Defendants has completed EDQs at an early stage". The master set out the various matters which must be included in a disclosure list, such as the location of documents, the identity of third parties who have relevant documents under the disclosing party's control, custodians, date ranges and keywords. He also said that the requirement to set out whether, and to what extent, documents are irretrievable due to their loss or destruction, is often overlooked but is important. Accordingly, it is not sufficient in Form N265 to simply leave blank the box dealing with documents no longer in the disclosing party's control.