UTB LLC v Sheffield United Ltd & Ors [2019] EWHC 914 (Ch) (09 April 2019) has caught attention mainly for the observation by Sir Geoffrey Vos that the White Book is wrong on one point in relation to the coming into force of the disclosure pilot.

There are helpful observations also in relation to the thought needed in relation to extended disclosure under PD51U, and to the principles on which privilege can be claimed.

Lastly, there are serious strictures aimed at parties and lawyers who “permit their mistrust of their opponents to become the driving force behind the litigation”. Court proceedings, the judge said, are not “a stage for a grudge match”.

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It came as a surprise to many that the disclosure pilot in the new PD51U took effect on 1 January 2019 in relation to all relevant applications thereafter, whatever the date of issue. This meant, for example, that those preparing during December for an application in January had to take account of the more onerous provisions of PD51U, including the obligations to discuss and agree the disclosure model to be used, along with the consequential matters relevant to the chosen model.

The problem highlighted in this case (but apparently shared by other practitioners) concerns the difference between:

Proceedings in which an existing order for disclosure had been made before 1 January 2019

…and the fact that

“the pilot shall not disturb an order for disclosure made before [1 January 2019]”.

In other words, pre-January orders stand, but the fact that an order for disclosure had been made under the old rules did not mean that any subsequent order was exempt from the provisions of the new rule.

This point is dealt with clearly in paragraphs 11 to 19 of the judgment. The central problem is that the new edition of the White Book says, in Part 51.2.10, that the “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”

As Sir Geoffrey Vos puts it:

It is one thing to say that a pre-existing order will not be disturbed by the commencement of the pilot, and quite another to say that the pilot is not applicable to any proceedings where a disclosure order has already been made. The first is correct.

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Extended disclosure

In paragraph 20 of the judgment you will find a full recital of the rule relating to extended disclosure and specifically to Model C: Request-led search-based disclosure and Model E: Wide search-based disclosure. The choice between models is not a trivial one. Sir Geoffrey Vos says (at paragraph 23)

parties to cases like this, who want to apply to the court for Extended Disclosure under PD51U, should give detailed thought to the new rules and specifically to the way in which they will affect their application.

He also says this (in paragraph 24)

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.

The reference to interpreting the rule “in a way which makes it work” goes wider than arguments about which rule applies, and is perhaps a warning to those who want to stand on finer points of interpretation in the rule. The words matter, of course, but the judge implies that they will give way in the face of a proportionate result consistent with the culture change intended expressly by the new rule.

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Privilege and redaction

I do not intend to pause on the arguments about privilege which are explored at length from paragraph 48 of the judgment. They are interesting and important, but nothing is served by summarising them here. The provisions in the new rule relating to claims “to withhold disclosure or production of a document, or part of the document, or a class of document” are set out at paragraph 65.

Summary

The point about the date is of finite application as “old” disclosure judgments fade into oblivion. The privilege point, and the provisions about withholding or redacting documents, are of relatively narrow application.

The points which matter in the long term are those mentioned above about the primacy of the new rule’s intention, and points made in the judge’s conclusions.

Paragraph 110 says

I will conclude this judgment by reminding the parties once again about the need for proportionality in this litigation. The court is not likely to look favourably on further disclosure applications in this case. It is imperative that the expedited trial of these matters is, as I have said, kept within bounds. As paragraph 6.3 of PD51U provides, 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. Paragraph 7.3 of PD51U provides that only the key issues in dispute are Issues for Disclosure, and disclosure issues do not extend to every issue which is disputed in the statements of case. Proportionality needs to be engaged at every stage of the process

Paragraph 112 says:

The parties need, as matters progress, to consider very carefully their continuing obligations under paragraph 3.2(3) of PD51U “to liaise and cooperate with the legal representatives of the other parties … so as to promote the reliable, efficient and cost-effective conduct of disclosure”, and indeed the trial of the action more generally.

The general messages about the conduct of litigation are important here. Those who fight in every last ditch will be criticised. Look, for example, at what is said in paragraph 85

[SUL’s solicitors] have concentrated on small points that do not seem to me to add up to very much. In a case of this size, and with solicitors’ correspondence running to thousands of pages, it is always possible to pick holes. I have looked at the holes that have been picked and have not been persuaded that they make out a good case…

This is worth thinking about before dipping your pen in vitriol to fire off another Exocet at the other side. It is great fun, of course (I used to love it), and clients often like it. It has always been prudent, however, to imagine every letter or message (or tweet come to that) being read out in court. Sir Geoffrey Vos gives an extra reason to be careful before taking those “small points that do not…add up to very much”.

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