Disclosure pilot: High Court clarifies test for varying disclosure orders and encourages use of disclosure guidance hearings

The High Court has considered applications relating to a disclosure order made under the disclosure pilot scheme which has applied in the Business and Property Courts since 1 January 2019: Vannin Capital PCC v RBOS Shareholders Action Group Ltd [2019] EWHC 1617 (Ch).

The decision clarifies that, in applying to vary a disclosure order under the pilot rules, there is no need to satisfy the so-called Tibbles criteria, ie that there has been a material change of circumstances or the order was based on misstated facts. The test set out in the rules is that the variation is necessary for the just disposal of the proceedings and is reasonable and proportionate. Where the variation sought is to reduce, rather than expand, the scope of disclosure, the decision suggests that the question of proportionality will be addressed on the basis of whether the existing order is disproportionate, so that a variation of the order would be proportionate.

In giving judgment the deputy judge also took the opportunity to encourage parties to make use of the procedure established under the pilot for disclosure guidance hearings of no more than 30 minutes. These are intended to allow parties to obtain the assistance of the court, in a relatively informal way, to resolve issues relating to the scope of disclosure or implementation of a disclosure order. Anecdotal evidence suggests they are not being widely used, which may suggest some scepticism on the part of court users as to their potential for saving time and costs. Continue reading

Disclosure Pilot: High Court clarifies transitional operation and considers privilege claims

The High Court has confirmed that the Disclosure Pilot operating in the Business and Property Courts since 1 January 2019 applies to all proceedings currently on foot in those courts (apart from those specifically excluded), regardless of whether orders for disclosure were made prior to that date. Accordingly, any applications for further orders regarding disclosure will be dealt with under the new rules contained in Practice Direction 51U (PD51U): UTB LLC V Sheffield United Ltd & others [2019] EWHC 914 (Ch). 

With regard to privilege challenges, the decision suggests that the wording of the new rules gives added force to the general rule that judges should be cautious about agreeing to inspect documents in order to test whether privilege has been properly asserted (although in some cases, such as here, it may still be considered appropriate).

The decision is also an interesting example of a case where privilege was claimed in respect of communications with a lawyer who was also acting as the client’s “man of business”, alongside his legal role. It illustrates that the existence of such dual roles will not preclude claims of privilege over those communications that satisfy the test of having been made in a relevant legal context. However, it will be necessary to satisfy the court that those carrying out the disclosure review exercise were astute to the need to distinguish such communications from those that took place in a business advisory context, which will not be privileged. Continue reading

Upcoming webinar – Disclosure pilot scheme in the Business and Property Courts

On Wednesday 16 January (12.30 – 1.30pm GMT), Julian Copeman and Rachel Lidgate will deliver a webinar for Herbert Smith Freehills clients and contacts entitled “The Disclosure Pilot Scheme in the Business and Property Courts – An overview of the major changes introduced by the Pilot and their implications for clients”.

Focusing on the disclosure pilot scheme that has been introduced from 1 January this year, the webinar will look at the significant changes introduced, consider the issues that are likely to arise, and provide practical advice on how clients can best address these.

The webinar is part of our series of HSF webinars, which are designed to update clients and contacts on the latest developments without having to leave their desks. The webinars can be accessed “live”, with a facility to send in questions by e-mail, or the archived version can be accessed after the event. If you would like to register for a webinar, or to obtain a link to the archived version, please contact Webinars.

Article published – Pilot of new disclosure rules: a change for the better?

Julian Copeman and Maura McIntosh have published an article in PLC Magazine looking at the new disclosure rules that are due to be piloted in the Business and Property Courts for two years starting in January 2019. The article outlines the key provisions and considers how much impact they are likely to have, as well as considering the improvements made from the draft initially published by the working group in November 2017.

Click here for a copy of the article, which first appeared in the September 2018 issue of PLC Magazine: http://uk.practicallaw.com/resources/uk-publications/plc-magazine.

Two-year pilot of new disclosure rules to commence 1 January 2019

New rules to govern disclosure of documents in litigation before the English courts were unveiled yesterday, having been approved by the Civil Procedure Rule Committee on 13 July. The rules will be subject to a two-year pilot in the Business and Property Courts which (subject to Ministerial consent) will commence on 1 January 2019. The pilot will be limited to the Business and Property Courts but it is expected that, if it is a success, it will lead to wider reforms to disclosure. The pilot will affect both new and existing proceedings, but it will not affect orders for disclosure made before the commencement date (unless those orders are varied or set aside).

The new rules follow on from proposals published last November by a working group chaired by Lady Justice Gloster (see our summary of the proposals here) which were subject to consultation until the end of February this year. The approved version of the rules is broadly similar to the proposals made last November, but with a number of revisions in light of feedback received during the consultation.

Perhaps most significantly, the rules have been amended in an effort to clarify the provisions relating to disclosure of known adverse documents and to the procedure for withholding documents on grounds of privilege. Continue reading

Article published – Proposals for disclosure reform: Do they fit the bill?

Late last year, a disclosure working group chaired by Lady Justice Gloster published proposals for disclosure reform, including a completely new rule to govern the disclosure of documents in English litigation. The proposals are subject to consultation until the end of February, following which there is likely to be a two-year pilot in the Business and Property Courts.

Julian Copeman and Maura McIntosh have published an article in the January/February 2018 edition of PLC Magazine in which they discuss the proposals and consider how likely they are to result in real change. Click here to download a copy.

Working group proposes pilot of new rules for disclosure

A disclosure working group set up last year, chaired by Lady Justice Gloster, yesterday published its proposals for reforms to the rules governing disclosure of documents in English litigation. The proposals are subject to consultation with a view to setting up a two-year pilot in the Business and Property Courts, in London and elsewhere. Comments on the proposals are requested by 28 February 2018, after which the proposals will be considered by the Civil Procedure Rule Committee.

The working group was set up in light of concerns that the changes to the disclosure process introduced by the Jackson reforms in April 2013 were not achieving their aims. Those reforms removed the previous presumption in favour of “standard disclosure” (ie documents that support or adversely affect any party’s case) and introduced a “menu” of disclosure options from which the court must choose “having regard to the overriding objective and the need to limit disclosure to that which is necessary to deal with the case justly”. However, despite those reforms, there is a general perception that standard disclosure is still being adopted in most cases, and that disclosure remains one of the main drivers of litigation costs.

Under the new proposals, in broad summary, the current  disclosure “menu” would be replaced by a new list of “models”. Although it’s fair to say the list of models does not look dramatically different from the current menu, the proposed rules contain clear signs steering the parties, and the court, toward a more restrained approach to disclosure. These include that the court will only make an order that one of the disclosure models should apply where it is persuaded that it is appropriate to do so in order fairly to resolve one or more of the Issues for Disclosure (which are to be agreed between the parties before the first case management conference). Although one of the models, Model D, is roughly equivalent to standard disclosure, that term is not used – presumably to remove the suggestion that there is anything “standard” about this option.

The proposed rules contain an express duty to disclose documents a party is aware of which are adverse to its case (unless they are privileged), regardless of any order for disclosure. There is also an express duty to refrain from providing irrelevant documents.

The draft rules also provide that where a party wishes to claim a right or duty to withhold a document, or part of a document, or a class of documents (eg on grounds of privilege), it must describe the document (or part or class) and explain “with reasonable precision” the grounds upon which the right or duty is being exercised. It is not clear whether this is intended to signal any change in the current practice of describing privileged documents in generic terms.

The proposals are outlined in more detail below. Continue reading