In a recent decision the court has clarified that parties are required to undertake reasonable and proportionate checks to see if they have or have had “known adverse documents” in order to fulfil the continuing obligation to disclose such documents under the Disclosure Pilot Scheme. Some guidance is given as to the kinds of steps likely, and unlikely, to fulfil this obligation: Castle Water Ltd v Thames Water Utilities Ltd [2020] EWHC 1374 (TCC).

A distinction was drawn between “search” and “check”. While no search for known adverse documents is required, each party should ensure that it has checked with the relevant people (according to the events or circumstances of the case) within its organisation whether they are aware of any documents which may be adverse given the issues in dispute.

Further clarification is given that the continuing obligation to disclose known adverse documents will be discharged provided that these checks are done appropriately when proceedings are commenced and the case is formulated by reference to the pleadings. This is so unless circumstances develop requiring a new check, or a party happens to become aware of other adverse documents following its initial disclosure (in which case these must also be disclosed).

Parties and their advisers should be alive to any change in circumstance, such as a material shift in either party’s case or introduction of additional issues, that may require this check to be carried out again, or with different people.

The case also contains a useful reminder that requests under a Model C form of disclosure must be focussed on the Issues for Disclosure and care taken that they are not so broad as to effectively become a Model D search exercise. This reminder is particularly apposite given the provisional view expressed in another recent case that where Model C disclosure is ordered, any documents a party locates which fall within the scope of the requests must be disclosed, whether or not they are relevant to the issues in the case (Pipia v BG Group Ltd [2020] EWHC 402 (Comm)). Where this approach is followed, a broadly drawn Model C request could lead to a high volume of irrelevant disclosure.

For more information see this post on our Construction Notes blog.