Beware the changing nature of disclosure!

Those of us who deal with cases in the Business and Property Courts – which cover many shipping and insurance disputes – have been on our toes since the introduction of the new disclosure pilot scheme on 1 January 2019.  Although the scheme does not presently apply to the Admiralty Court, it is applicable to cases in the Commercial Court – where we often operate.

The scheme puts much more emphasis on co-operation between parties and their legal advisers when it comes to determining the proper scope of disclosure in a world where the volume of documents is vastly increasing.   There is also now a need for legal advisers to certify that they have properly advised their clients of their disclosure duties.  Legal advisers are also now required to consider the use of proper technology to review large volumes of potentially relevant data to identify (via key words and phrases and/or metadata) documents and circumstances that may be potentially disclosable.   This has seen us work much more closely with expert technology professionals and some firms are even developing their own separate businesses in this area.

Contrary to what many of us had thought, the Chancellor of the High Court has recently(1) made it clear that all existing cases must now be subject to the 2 year disclosure pilot scheme and not just those cases commenced after 1 January 2019.  It is now not correct to assume that PD51U (the practice direction dealing with the new pilot scheme) does not apply where an order for standard directions was made before 1 January 2019.   That is despite the fact that the White Book published earlier this year says otherwise!

The Chancellor also clarified that paragraph 1.3 of the PD51U which states: “The pilot shall not disturb an order for disclosure made before the Commencement Date or before the transfer of proceedings into a Business and Property Court, unless that order is varied or set aside” does not mean that the new rules should not be applied to existing proceedings.  He stated that the pilot was intended to apply, and does apply, to all relevant proceedings subsisting in the Business and Property Courts, whether started before or after 1 January 2019, even in a case where a disclosure order was made before that date.  In other words, he effectively has said that 1.3 of PD51U is wrong!

As a result of this, we are urgently reviewing our clients’ positions on disclosure in all existing cases in the Business and Property Courts so as to properly consider the principles in PD51U.  This is a highly technical and demanding subject and requires all members of the team to be conscious of the technical issues that arise when dealing with the huge numbers of potentially relevant documents that can arise in connection with a complex dispute.   In one recent case, our team had to deal with multiple categories of potentially relevant documents – emails, SMS and internet based messaging via platforms as well as the metadata generated by mobile phones and laptops.  It is important to be able to explain the methodology used to distil such vast volumes of data down to the key documents relevant to the issues in dispute.   At the same time, one needs to know where to look and how to extract those key messages that could make all the difference to the clients’ case.

  1. See comments made by Sir Geoffrey Vos in UTB LLC v Sheffield United Ltd & Ors [2019] EWHC 914 (Ch) (09 April 2019)
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