The Disclosure Pilot: narrow focus of disclosure issues and not using the disclosure pilot as an offensive weapon

I recently saw a police tweet which expressed almost admiration for the speed with which some car thieves had stripped down a couple of cars, neatly packaging the components for re-use elsewhere.

Gordon Exall, author of the Civil Litigation Brief, does much the same with judgments. Have a judgment delivered on, say, 14 February, and Gordon will have stripped it down to its essentials by 16 February, ready for re-use in your pleadings, submissions or (in my case) articles, by 17 February.

That’s what he has done with the judgment of Sir Geoffrey Vos in McParland & Partners Ltd & Anor v Whitehead [2020] EWHC 298 (Ch) (14 February 2020) in a blog post called The Disclosure Pilot: guidance given as to how it should work: not a stick with which to beat your opponent. The post also covers another judgment, on second applications for disclosure, but I am going to leave that on one side for the moment.

Neither the McParland judgment nor Gordon’s summary of it is very long. My purpose is to pick out a couple of points, provide links to their source in the Practice Direction, and hammer them, leaving you to read more if you want to.

It may be helpful to have Practice Direction 51U to hand. The context was a Disclosure Guidance Hearing at which the court considered Identifying the Issues for Disclosure and the Extended Disclosure Models along with the duties of cooperation, both general under the rules as a whole and specifically in relation to disclosure.

Let’s take my hammer first to the point about issues for disclosure and the difference between them and the pleaded issues. The judge said:

It should not be a mechanical exercise of going through the pleadings to identify issues that will arise at trial for determination. Rather it is the relevance of the categories of documents in the parties’ possession to the contested issues before the court that should drive the identification of the Issues for Disclosure.

The judge finds a helpful example of the difference in the case before him – the date on which employment terminated was certainly an issue for trial, but (paragraph 3)

that issue is one of law or construction of agreed actions, and not one to which any documents, beyond those already produced on initial disclosure (i.e. the contracts themselves and the pleaded letters and emails), will be relevant… [and] … it was not an issue that needed to appear on the list of Issues for Disclosure at all.

The judge refers to paragraph 7.3 of the Practice Direction. Have a look at it, perhaps, and then consider any of your current cases in which the scope of the issues for disclosure is being debated.

__________

Paragraph 8 of the judgment considers the choice between disclosure models.

The judgment’s key sentence on this is in paragraph 9:

the Disclosure Pilot does not require compliance to be time-consuming or costly. It just requires the parties to consider what documents they are likely to hold and to what issues those documents are relevant.

__________

Lastly, the judgment considers the duty of cooperation. Just one paragraph (12) will do to emphasise this:

It is clear that some parties to litigation in all areas of the Business and Property Courts have sought to use the Disclosure Pilot as a stick with which to beat their opponents. Such conduct is entirely unacceptable, and parties can expect to be met with immediately payable adverse costs orders if that is what has happened. No advantage can be gained by being difficult about the agreement of Issues for Disclosure or of a DRD (Disclosure Review Document), and I would expect judges at all levels to be astute to call out any parties that fail properly to cooperate as the Disclosure Pilot requires.

__________

One last point is worth making. The hearing was a Disclosure Guidance Hearing. Anecdotally, at least, there have been few of these, and there are mixed views on their value. For some, the limit of 30 minutes makes them seem of little value. For others, that word “Hearing” seems to have been an excuse to wheel out QCs and teams of lawyers who take most of the 30 minutes introducing themselves.

I wrote about this in a post called The disclosure pilot – making better use of the Disclosure Guidance Hearings which referred in turn to a post by Vince Neicho of Integreon called What we learnt about the Disclosure Pilot 10 months in. Vince described the Disclosure Guidance Hearing as

…designed to facilitate a discussion between the parties and the judge where agreement has not been possible on aspects of the disclosure process.

As Sir Geoffrey Vos’s judgment in McParland shows, these hearings can have a real value in moving a case on. As Paragraph 11.4 of the Practice Direction makes clear:

Whilst the primary function of the Disclosure Guidance Hearing is to provide guidance, for the avoidance of doubt the court may, where appropriate, make an order at a Disclosure Guidance Hearing.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure and tagged . Bookmark the permalink.

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