In a recent decision, the High Court refused to order the defendants to disclose further documents, beyond the 95 documents they had already produced under an order for standard disclosure, or Model D disclosure, under the disclosure pilot that is currently proceeding in the Business and Property Courts (CPR Practice Direction 51U): Agents’ Mutual Ltd v Gascoigne Halman Ltd  EWHC 3104 (Ch).
The decision illustrates that the courts will carefully scrutinise an order for further disclosure under the disclosure pilot, whether it is framed as an application to enforce compliance with an existing order or to vary such an order by requiring additional disclosure. In each case, the court must be satisfied that the further order is reasonable and proportionate. And, if what is sought is a variation of the original order, there is the further requirement that the variation is necessary for the just disposal of the proceedings.
Interestingly, the judge found that the applicant had not established that there was any deficiency in the defendants’ disclosure. The fact that only a small number of documents had been produced was not, in itself, a deficiency, though in some cases the court might be able to infer that there was some failure if it was obvious that certain types of documents must exist. The court was also critical of the claimants’ suggestion that the search terms were too narrow to ensure all relevant documents had been captured. That misunderstood the purpose of keyword parameters, which was to reduce an unmanageable universe of documents to a pool that could be searched manually. The question was whether a reasonable and proportionate search had been undertaken, not whether no stone had been left unturned.
The judge also emphasised the need for the parties to engage with one another in order to agree a search methodology and terms before any manual review is carried out. As the judge noted, “it is the manual review that costs time and money, not the multiple re-runs of electronic searches”.
After standard disclosure was conducted, the claim was substantially amended including to add a second defendant. In February 2019, the court ordered the original parties to give standard disclosure in relation to any new issues arising out of the amendments and the claim against the new defendant. Both parties later accepted that, since the order was made after the disclosure pilot had commenced, it should have been framed not as an order for standard disclosure under CPR 31, but as an order for Model D extended disclosure under PD 51U: see UTB LLC v Sheffield United Ltd  EWHC 914 (Ch) considered here.
In October 2019, the claimant applied for an order for further disclosure as set out in a draft order appended to the application notice.
In preparing their disclosure pursuant to the February 2019 Order, the defendants had (in the usual way) transferred electronic documentation held by defined custodians (plus a small number of scanned hard documents) onto an electronic disclosure document platform. That gave a “Document Universe” of more than 2 million documents, which was reduced to around 30,000 documents by reference to defined date ranges and keyword parameters. 95 documents were then disclosed following a manual review.
The claimants contended that the keyword parameters were so unsatisfactory that the electronic search should be conducted again by reference to additional additional search terms and date ranges they identified. They also sought specific disclosure of “[a]ll documents related to the arrangements between Zoopla and the Defendants for the funding of any defence…”.
The High Court (Marcus Smith J) dismissed the claimants’ application.
The judge said the application for specific disclosure was “misconceived” in that the documents sought did not go to relevant issues on the pleadings. Further, given the vast Document Universe, there was no evidence that the documents could be located without the assistance of electronic searches. There was therefore an overlap between the specific disclosure application and the application to require a fresh search by reference to additional search terms and date ranges.
The application was said to be made under paragraph 18 of PD 51U, which provides that the court may vary an order for extended disclosure if it is satisfied that this is necessary for the just disposal of the proceedings and is reasonable and proportionate. In the course of submissions, the claimants suggested that the application might equally be based on paragraph 17, which applies where a party has failed adequately to comply with an order for extended disclosure. The court may make further orders to ensure compliance, including requiring a party to conduct further searches. Under paragraph 17, the court must be satisfied that such an order is reasonable and proportionate, but there is no separate requirement that it be necessary for the just disposal of the proceedings as there is under paragraph 18.
The claimants contended that there were “a number of serious deficiencies” in the defendants’ approach to disclosure, including:
- Too few documents produced, in that only 95 documents were produced of which 25 were public-domain or third-party documents. The judge said this was not, in itself, a deficiency: “The fact is that there may, in any given case, be few relevant documents of which to give disclosure.” The judge did not consider that this was a case where it was so obvious that documents of a certain type must exist, so that the failure to produce such documents would give rise to an inference that the disclosure process was deficient.
- Inadequate search terms, in that they were “plainly too narrow to ensure that all documents relevant to the issues in this case have been captured or manually reviewed” and were badly crafted. The judge said the complaint that the searches were too narrow to capture all relevant documents essentially misunderstood the purpose of keyword parameters. The point was “to reduce an unmanageable universe of documents to one susceptible of a manual search”. Some relevant documents might be missed, but the question was whether a reasonable and proportionate search had been undertaken. As for whether the searches were badly crafted, while the keywords proposed by the claimants might result in different “hits”, the judge was not persuaded that they would produce a better outcome. That was the minimum threshold before the application would even become arguable.
The judge concluded that the requirements of neither paragraph 17 nor paragraph 18 of PD 51U had been met in this case. In his view, it was the higher test under paragraph 18 that applied, since the claimants had not demonstrated a failure to comply with the original order. But even if the lower test under paragraph 17 had applied, he was not satisfied that the order sought was reasonable or proportionate.
The judge took the opportunity to note, however, that in this case neither party had engaged with the other to agree a search methodology and search terms before the methodology was implemented. This, he said, was a failing on both sides. Although it did not change his conclusion in this case, he emphasised that:
“Because electronic searches have the effect of determining the scope of subsequent, more intense and probably manual reviews, it is imperative that such electronic searches not be conducted unilaterally, but with the parties engaging with each other with a view to agreeing precisely how the electronic search is to proceed.”
He recognised that framing electronic searches may require trial and error, as keywords which appear appropriate may produce too many hits or too few, and the process should be undertaken in “an iterative and co-operative way” process. But, he said, it is important to complete this process before the manual review.