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Infelicities of expression, the bane of the hard-pressed lawyer - a disclosure pilot update

28.06.2019 Energy & infrastructure

Ben Moon

Ben Moon Legal Director

“It will remain our inexorable direction of travel to maintain the White Book as the practitioners’ text of choice.” – Sir Geoffrey Vos, Chancellor of the High Court and Editor-in-Chief of the White Book in the Preface to the 2019 Edition.

The White Book: the procedural text which contains the Civil Procedure Rules (“CPR”) together with commentaries as to application, and which is used extensively by the judiciary, barristers and solicitors. Unfortunate then, that the Chancellor himself should declare the White Book to be wrong in relation to the new disclosure pilot scheme in the Business and Property Courts in England and Wales which came into force through Practice Direction 51U of the CPR on 1 January 2019 (the “Pilot”) and its application to proceedings where standard disclosure had been ordered by the court prior to commencement of the Pilot.

Specific disclosure: standard disclosure or Extended Disclosure?

Prior to the commencement of the Pilot a party would have made an application for specific disclosure to seek disclosure of additional documents but that process was abolished (for relevant cases) by the Pilot.  Instead, paragraph 18.1 of the Pilot provides that “The court may at any stage make an order that varies an order for Extended Disclosure. This includes making an additional order for disclosure of specific documents or narrow classes of documents relating to a particular Issue for Disclosure.”  But does the court have jurisdiction to make such an order where there had been no previous order for Extended Disclosure (because the court had previously made a standard disclosure order)? 

Three recent cases have tackled this issue in slightly different ways. The facts of each case are largely irrelevant save that, in common with all three:

  • each case had started before 1 January 2019 and thus was an “existing” case;
  • ­the court had made an order for standard disclosure;
  • ­it was alleged that a party had failed to comply with its standard disclosure obligation;
  • ­specific documents or categories of documents were sought;
  • ­the application came late in the day; the main trial would come before the court within 1-3 months of the application.

The solutions

White Winston Select Asset Funds LLC, and another v Mahon and another [2019] EWHC 1014 (Ch) (23 January 2019)

Mr Johnson QC (sitting as a Deputy Judge of the High Court) thought the court did not have jurisdiction to make an order for specific disclosure because Rule 31.12 of the CPR had been replaced by the Pilot. But, he was not convinced that he had jurisdiction under paragraph 18.1 of the Pilot because, he considered, the latter applied only where there had been Extended Disclosure, which had not occurred in this case.

Mr Johnson QC, however, considered that he did have jurisdiction to make an order analogous to a Rule 31.12-type specific disclosure order under the court’s general case management powers, which seemingly are preserved by paragraph 20 of the Pilot.

Specific disclosure was ordered in relation to the categories of documents sought.

Kazakhstan Kagazy plc and others v Zhunus and others [2019] EWHC 878 (Comm) (4 April 2019)

Mr Justice Baker, whilst stating that Part 31 no longer applies to disclosure applications, concluded that “it must be right that the court can, in an appropriate case, make a proper and targeted order for specific disclosure, such as might have been given under Part 31, if justified”. 

Although Mr Justice Baker did not refer expressly to the court’s general case management powers (as Mr Johnson QC did), he did conclude that a specific disclosure order would be appropriate in circumstances where a party had not complied with its standard disclosure obligations and where the parties were operating to an expedited timetable.

Limited specific disclosure was ordered.

Sheffield United Ltd v UTB LLC and others [2019] EWHC 914 (Ch) (9 April 2019)

Here it was suggested in argument that the Pilot did not apply because:

  1. Paragraph 1.3 of the Pilot states that “The pilot shall not disturb an order for disclosure made before [1 January 2019] … , unless that order is varied or set aside”; and
  2. The commentary at paragraph 51.2.10 of the White Book stated 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 … ”.

Sir Geoffrey Vos rejected this suggestion, making it clear that the Pilot applied to all (relevant) proceedings even where previous disclosure orders were made.  As to the commentary in the White Book, Sir Geoffrey said “It seems to me that the note is a misunderstanding of paragraph 1.3 of the Pilot …” i.e., wrong. Unfortunate given Sir Geoffrey’s own preface in the White Book (above) but, as Sir Geoffrey himself noted in his judgment, sometimes hard-pressed lawyers make unfortunate comments, even mistakes.

Sir Geoffrey referred to paragraph 18.1 and said that “The court will interpret the new PD51U in a way that makes it work as effectively in relation to applications for disclosure in proceedings issued after 1st January 2019 as it will in relation to further applications for disclosure made in cases where disclosure was already ordered under CPR Part 31 before that date.”

Applying the Pilot, Sir Geoffrey considered whether he should “allow” Extended Disclosure, which is not the default position.  Sir Geoffrey noted that:

  • “the Pilot was intended to effect a cultural change”;
  • ­disclosure was to be “directed specifically to defined issues arising in the proceedings”;
  • ­­the court had to “consider whether the application is “reasonable and proportionate having regard to the overriding objective””; and
  • “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 application was refused because it did not meet those requirements.

Comment

It seems that whilst the court might not interfere with a prior standard disclosure order, any new disclosure applications will be dealt with in accordance with the Pilot.  The Chancellor made it clear that Extended Disclosure is not to be used as a tactic.  Parties must not take every point but instead are expected to cooperate, act proportionately at every stage of the disclosure process and focus on those issues that require resolution so as to promote the reliable, efficient and cost-effective conduct of disclosure to achieve a just and proportionate resolution of the real issues in dispute.

Article authors:

Ben Moon