The second blog in this three part series continues to take a look at key cases decided during the first year of the Disclosure Pilot Scheme ("DPS") and key lessons to be learnt. For a refresher of what the DPS involves, see our previous blog here.
Parties should seek guidance on disclosure orders prior to making contested applications
The Court in Vannin Capital PCC v RBOS Shareholders Action Group Ltd and others [2019] EWHC 1617 (Ch) criticised the parties for not having sought guidance by means of a Disclosure Guidance Hearing ("DGH") under paragraph 11 of PD51U.
The DGH is a new concept introduced by the DPS and it is not yet clear what weight will be attached to the use of these hearings to narrow the disclosure issues and save costs. In Vannin Capital, rather than seeking a DGH, the parties instead made contested applications to the Court. This was found to be "undesirable and contrary to the spirit of the disclosure pilot".
The Claimant was successful in its application under the DPS for an order requiring the Second Defendant to carry out further searches to comply with the order made at the Case Management Conference. The Second Defendant's application to vary the disclosure order was refused.
The Court observed that, although applications to vary an order for Extended Disclosure "do not appear to be contemplated as suitable for Disclosure Guidance Hearings", applications regarding the scope of Extended Disclosure were thought to be suitable. If the parties could not agree the position, they ought to have sought the guidance of the Court through a DGH, which would have saved the parties time and costs in making contested applications.
The DPS applies to proceedings even where a disclosure order had been made pre-1 January 2019
In UTB LLC v Sheffield United Ltd and others [2019] EWHC 914 (Ch), Sir Geoffrey Vos (Chancellor of the High Court of England and Wales and Editor-in-Chief of the White Book) clarified that the White Book was incorrect to state 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".
In this case, an order for standard disclosure had been made before the introduction of the DPS. Subsequently, in March 2019, following the introduction of the DPS, a party made an application for disclosure of further documents.
The Court held that, although a pre-existing order would not be disturbed by the DPS (paragraph 1.3 of PD51U), where a new application is made, this will fall within the DPS. The DPS deliberately did not have any transitional provisions so that it would apply to all proceedings irrespective of when they were commenced, and it was therefore incorrect to suggest that it would not apply to proceedings where an order has previously been made in relation to disclosure.
In cases where proceedings were commenced prior to 1 January 2019, parties should be aware that it is still possible for the DPS to apply to applications made, even where a disclosure order has already been made. The DPS should therefore not be disregarded. It is not a "rewrite of CPR 31", but rather a new code and practice to follow. Courts are unlikely to be lenient in cases where the DPS applies, especially given the amount of time that has been afforded to practitioners to become familiarised with the DPS requirements.
