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mThe

Business and Property CourtDisclosure Pilot

- six months in

Tom Gosling Asa Tolson Micheál Murphy

27th June 2019

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The DisclosurePilot Scheme

Practice Direction 51U

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Why the Change?• Excessive cost, scale, and complexity

of disclosure• Large quantities of wholly irrelevant

documents• Unnecessary searches• Judges not effectively dealing with

disclosure at CCMC• Standard disclosure as default option

even in less complex cases

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mWhen does it apply?

Applies• From 1 January 2019 for 2 years• Business and Property Courts• New AND existing proceedings• If order made in BPC and transferred out,

order still applies

Does Not Apply• County Court (even if business and

property work)• Competition claims• Public procurement claims• Intellectual Property and Enterprise Court• Doesn't extend PD 63, para. 6.1 in

Patents Court• Admiralty Court• Shorter and Flexible Trials Scheme• Fixed Costs regime or Capped Costs

Regime• Does not alter existing order for

disclosure unless varied/set aside

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mThe Concepts• Issues for Disclosure• Initial Disclosure• Extended Disclosure• Models of Extended Disclosure ('Menu of Options')• Standard Disclosure (Model D) no longer the norm

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mDuties of the Parties• Co-operate to assist Court so that scope of disclosure

agreed/determined in most efficient way possible• Take reasonable steps to preserve relevant documents• Disclose known adverse documents• Comply with disclosure orders• Undertake searches in responsible and conscientious manner• Act honestly both in giving documents and reviewing other side's• Reasonable efforts to avoid providing irrelevant documents• All continuing duties

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mDuties of the Representatives

• Co-operate to assist Court so that scope of disclosure agreed/determined in most efficient way possible• Take reasonable steps to preserve relevant documents• Reasonable steps to advise and assist client to comply with disclosure

duties• Liaise and cooperate with other side to promote reliable, efficient and

cost-effective conduct of disclosure• Act honestly in process of giving disclosure and reviewing documents

disclosed by other side• Undertake a review to satisfy any privilege claim is properly made and

reason for claim to privilege sufficiently explained• All continuing duties

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mPreservation of Documents• Duty to:

• Suspend deletion/destruction processes• Send written notification to all relevant employees and former employees:

• Identify documents/classes of documents to preserve• Notify recipient not delete or destroy and take reasonable steps to preserve

• Take reasonable steps so agents/third parties who may hold documents do not destroy/delete documents relevant to an issue

• Legal reps within reasonable period of being instructed:• Notify client of need to preserve docs and obligations para. 3.1• Obtain written confirmation from client or appropriate representative of client

that taken steps required under para. 4.2 and 4.3• Confirm in writing when serve POC/Defence that steps taken to preserve

relevant documents as required by PD

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mClient Disclosure Letter• Why the need?

• When?

• Para 3.2(2)• Para 4.4(1)• Para 4.4(2)• Para 4.5

• With retainer letter

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mClient Disclosure Letter• What should it do? • Purpose of disclosure

• Define disclosure• Define documents• Duties

• Document preservation• Written notification to

employees and former employees (para 4.3)

• Procedure• Initial Disclosure• Known adverse documents

• Written Confirmation (para 4.4(2)

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mInitial Disclosure• At time of POC/Defence• Not apply to Part 8. Not apply to CF without POC• Initial Disclosure List of Documents• File and Serve• Key documents relied on• Key documents necessary for other parties to understand case• Brief description of searches already undertaken• Copies of documents in e-form (unless otherwise agreed) to be

served but not filed• List (but no need to provide) documents already provided after

intimation of proceedings

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mInitial Disclosure• No further search should be required at this stage• No need to translate documents• No more than 200 documents/1000 pages• Obligations of PD16, para. 7.3 continue to apply• Out of Jurisdiction – Initial Disclosure not required until D

files AOS not contesting jurisdiction, or one under CPR 11(7)(b)

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mKnown Adverse Documents

Paragraph 5.1• "the key documents on which

it has relied... including the documents referred to in that statement of case"• "the key documents that are

necessary to enable the other parties to understand the claim or defence they have to meet"

Paragraph 3.1(2)• "once proceedings have

commenced against it or by it and in accordance with the provisions of this pilot scheme, to disclose,regardless of any order for disclosure made, known adverse documents unless they are privileged"

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mDispensing with Initial Disclosure• Agreement (para. 5.8):

• Parties agree to dispense with or defer• Must record reasons• Reasons must be available to Court at CCMC• Court can set aside

• Court order (para. 5.10):• If one party want to dispense with, can apply• App notice, evidence where necessary• Dealt with on paper or at short telephone hearing• If would incur disproportionate cost or be unduly complex

• Extensive Documents:• If more than 1000 pages or 200 documents, requirement to give ID ceases

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mExtended Disclosure

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mED - Procedural Outline

Stage PD Ref

Time

1 All parties state in writing whether likely to request ED Models B-E 7.1 Within 28 days of the closure of statements of case

2 Where one or more parties indicated, C must prepare draft List of Issues for Disclosure (“LID”)

7.2 Within 42 days of the closure of statements of case

3 Ds proposed wording or alternative wording to LID 7.5 SAP, no later 14 days after service draft LID

4 Parties must discuss and seek to agree LID and indicate Model sought for each party using 1A Disclosure Review Document (“DRD”)

7.6 In advance of CMC

5 Party proposing Model C must complete and provide 1B DRD 10.5 No later than 28 days after step 3

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mED - Procedural Outline Cont..

Stage PD Ref

Time

6 Any party provided with 1B DRD must complete “response” column 10.5 Within 14 days of receiving 1B DRD

7 Parties prepare and exchange drafts s2 DRD incl cost and document no. estimates

10.6 SARP, not less than 14 days before CMC

8 Parties must seek to resolve any disputes over the scope of any ED sought

10.7 Before CMC

9 C must file single joint DRD 10.8 No later 5 days before CMC

10 Parties must independently file signed Certificate of Compliance (Appendix 3)

10.9 SARP after JDRD

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Standard Disclosure is Dead

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Transitional “grace” and

hardening judicial Attitudes

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mJustification

application of test of reasonableness and proportionality at each stage.

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mIssues for Disclosure“means for the purposes of disclosure only those key issues in dispute, which theparties consider will need to be determined by the court with some reference tocontemporaneous documents in order for there to be a fair resolution of theproceedings. It does not extend to every issue which is disputed in the statementsof case by denial or non-admission.”

• List of Issues for Disclosure (“LID”)• Claimant responsible for production• “fair and balanced summary”• Key areas of dispute arising from pleadings• In respect of which likely at least one party seeking ED

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mDisclosure Review DocumentThe “DRD”1A – Issues and Proposed Disclosure Models1B – Model C Requests2 -Questionnaire

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Model ADisclosure confined to known adverse documents

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mModel BLimited Disclosure

1. Key documents relied upon in support of statements of case

2. Key documents necessary for other parties to understand claim or defence they have to meet

3. Known adverse documents4. NO SEARCH

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mModel CRequest-led search-based disclosure

disclosure of particular documents or narrow classes ofdocuments relating to a particular Issue for Disclosure, byreference to requests set out in or to be set out in Section1B of the Disclosure Review Document or otherwise definedby the court.

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mModel DNarrow search-based disclosure, with or without Narrative Documents

a party shall disclose documents which are likely to support or adversely affect its claim or defence or that of another party in relation to one or more of the Issues for Disclosure.

required to undertake a reasonable and proportionate search

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mModel EWide search-based disclosure

a party shall disclose documents which are likely to support oradversely affect its claim or defence or that of another party inrelation to one or more of the Issues for Disclosure or which maylead to a train of inquiry which may then result in the identificationof other documents for disclosure…

Only to be ordered in exceptional cases

Includes narrative documents unless otherwise ordered

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mRecent Updates• Disclosure Pilot Scheme in the Insolvency and Companies

Court – Guidance of Chief Registrar Briggs• DPS applies to the Insolvency and Companies List but not to

PD 51P on Insolvency Express Trials;• Section 994 – 996 Companies Act 2006; and• Winding up on Just and Equitable ground

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mPart 8 Claims• Guidance provided by Chief Master Marsh• The DPS does not directly apply to Part 8 claims because Part 8

contains its own regime for the disclosure of documents relied on by the parties.• The wording in paragraph 5.1 of PD 51U is designed to ensure

that the provisions relating to Initial Disclosure do not overlap with, and duplicate, provisions in Part 8.• The court has power to make an order for Extended Disclosure

under the DPS in a Part 8 claim.

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mUTB LLC v Sheffield United Ltd [2019] EWHC 914 (Chd)• DPS applies to all relevant proceedings subsisting in the

Business and Property Courts whether they commenced before 01 January 2019 even in a case where a disclosure order was made before 01 January 2019 under CPR Part 31.• Part 51.2.10 of the White Book 2019 is wrong.• The fact that paragraph 18 (and other paragraphs of PD

51U) refer to concepts such as Extended Disclosure and Lists of Issues for Disclosure (concepts that did not exist before 1 January 2019) does not make the DPS any less applicable to cases in the B&PCs after that date.

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• Inspection of Privilege• Point of the Pilot is to effect a "culture change" and the

Pilot is not simply a "re-write of part 31". "It operates along different lines driven by reasonableness and proportionality (see paragraph 2 of PD51U), with disclosure being directed specifically to defined issues arising in the proceedings."• Extended Disclosure is "not a tactic, let alone a

weapon" but is about the "just and proportionate resolution of the real issues in dispute"

UTB LLC v Sheffield United Ltd [2019] EWHC 914 (Chd)

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mKey Points• Think about disclosure from the outset;• Client Disclosure Letter;

• Document preservation;• Defining Documents;• Explaining Disclosure• Obtain Written Confirmation from Client that they understand their

obligations.• Initial Disclosure at the time of the Letter of Claim;• List of Issues – representing a fair and balanced summary of

areas of dispute arising from the pleadings;• Extended Disclosure – Consider the appropriate model; and• Embrace the new culture!