New disclosure practice direction for Business and Property Court cases.
On 1 January 2019 a new pilot practice direction (“PD”) comes into effect for most proceedings in the Business and Property Court in Newcastle and Leeds (amongst other centres). The pilot lasts two years and creates new disclosure rules that supersede the existing rules wherever there is conflict. Although the PD will not initially apply in the County Court, this will be kept under review and in my view it is quite foreseeable that it will be extended to multi-track cases.
The PD potentially broadens the obligations and scope of disclosure, especially at the beginning of proceedings. Presumably this is designed to encourage cases to conclude more quickly by encouraging settlement and to reduce costs.
The obligations in the new PD commence when contemplating proceedings and will apply to proceedings that are ongoing on 1 January 2019. Solicitors and litigants therefore need to consider the impact of these rules now.
The disclosure principles within the new PD are similar to CPR 31 but in many cases extend the scope or detail of CPR 31. It remains the case that a party needs to disclose the existence of documents that are either adverse to their own case or support the case of another party. Some of the enhanced requirements of the new PD include:
- Parties must actively preserve any documents likely to be disclosable from the moment that litigation is contemplated;
- Parties must disclose the existence of documents of which they are aware, even if they don’t have them or know where they are;
- Disclosure explicitly includes electronic media including website metadata (non-visible coding information on web pages).
Under the new PD disclosure will take place in two stages. “Initial Disclosure” occurs when a party issues a claim or provides their first statement of case (defence). “Extended Disclosure” will usually occur at the first case management hearing and will cover documents not already disclosed.
The PD places a greater emphasis on parties cooperating with one another to ensure that disclosure is agreed. When it can’t be, parties must ensure that the court has a clear understanding of what documents are relevant and why there is a dispute regarding disclosure. This is achieved by completing one of the new disclosure forms created by the PD.
Requirements prior to and at the commencement of proceedings
Legal representatives must take reasonable steps to ensure disclosable documents are preserved. This duty includes explicitly advising clients of the need to preserve documents even if preserving them conflicts with a client’s data protection system.
Both claimants and defendants need to be aware Initial Disclosure requires a party to serve an “Initial Disclosure List of Documents” with their initial statements of case (particulars of claim or defence). This Initial Disclosure must list all documents that are subject to disclosure obligations, including those which are not within the party’s possession. Each party must also provide to the other the key documents upon which it relies and documents which another party might need to help them understand and respond to the claim or defence.
Once litigation has commenced
Once proceedings have started the parties must work together to try to agree a “List of Issues for Disclosure” document. The document sets out what is agreed and disputed in terms of necessary disclosure and which of the new “Disclosure Models” (see below) will be used to address each issue.
Should a party believe greater disclosure than that given in Initial Disclosure is required, they must request Extended Disclosure. Extended Disclosure is, in essence, disclosure that goes beyond the new Disclosure Model A. If a party requests Extended Disclosure the parties will need to produce a joint “Disclosure Review Document” setting out the scope of the disclosure and what elements are agreed or disputed.
The PD introduces five new Disclosure Models. In brief they are:
- Model A – The Disclosure only of documents known to be adverse to a party’s case or supporting another party’s position. The duty to inform the other party of documents that are adverse or support another party’s case is ongoing throughout proceedings;
- Model B – Model A disclosure, plus disclosure of documents upon which a party relies or documents necessary for another party to understand the case and not already disclosed in Initial Disclosure;
- Model C – Model A disclosure, plus disclosure of documents or a class of documents specifically requested by another party concerning an issue within the List of Issues for Disclosure.
- Model D – Model A disclosure plus a relatively narrow “reasonable and proportionate” search for other documents addressing the List of Issues for Disclosure;
- Model E – Similar to Model D but requiring a relatively broad search and including ‘train of inquiry’ searches for documents suggested by other documents discovered in the course of the search.
The full PD is 26 pages long, so this is only a brief summary of some of the key points. Anyone potentially affected by the new obligations is advised to read the new PD in full here
Please feel free to contact Dere Street Barristers commercial team with any queries regarding understanding how the new PD will affect litigation and ensuring solicitors meet their new obligations. For more information or to speak to one of the team please contact the civil clerking team.
Jamie Johnston is a barrister at Dere Street Barristers working within the civil and commercial team. Before coming to the Bar he founded and ran a national franchising company working in the fitness industry.