Where an order for disclosure was made in a case prior to 01 January 2019, the Pilot Scheme will still apply to all subsequent applications for disclosure.
The transition provisions of the Disclosure Pilot Scheme have been analysed by the Chancellor of the High Court in the case of UTBC v Sheffield United, deciding that an application for specific disclosure fell within the Pilot Scheme, against the expectations of both parties.
Pre-existing disclosure orders
The Pilot Scheme has applied to all but a few categories of cases in the Business and Property Courts since 01 January 2019, but does not disturb any disclosure orders made before that date. This, as the judge noted, is not the same thing as the Pilot Scheme not applying to cases where a disclosure order had been made before 01 January 2019, as the parties had interpreted it. A note in the White Book at Part 51.2.10 states that “[t]he pilot does not apply to any proceedings where a disclosure order has been made before it came into force”, which the judge concluded was wrong.
Which Model most closely equates to Standard Disclosure?
Where standard disclosure was ordered before 1 January 2019, the question arises as to which of the Disclosure Models this equates to under the Pilot Scheme. The Pilot Scheme deliberately dispensed with the concept of there being a “standard” approach and so none of the Models is exactly the same as the previous regime. The judge in UTBC v Sheffield United said that the standard disclosure ordered in the case had been interpreted by the parties as equivalent to Model E. This may reflect the way in which the parties to this acrimonious dispute had approached matters, but in our view Model E is more similar to the old “Peruvian Guano” or “train of enquiry” form of disclosure, which was rarely ordered previously and is reserved for “exceptional case[s]” under the Pilot Scheme. We believe that model D is the closest of the new Models to what was “standard disclosure” under CPR 31.
What does this mean for existing proceedings?
Where an order for disclosure was made in a Business and Property Courts case before 1 January 2019, the parties’ obligations under that order do not change. But if a party seeks an amendment to that order, or a further order for disclosure, such as for specific disclosure, the Pilot Scheme will apply.
In UTBC, this meant that before the application for specific disclosure could be dealt with, a list of Issues for Disclosure needed to be created. The judge stated that “[I]t is vitally important that the central legal and factual issues that divide the parties are identified and agreed, so that the trial judge is able to focus on what he has actually to resolve”.
It also meant that the disclosure applied for was treated as Extended Disclosure and the provisions of paragraph 6 of Practice Direction 51U applied. The court’s decision as to whether to grant the application would be taken by reference to the criteria set out in that paragraph, which differ from the old CPR 31.
The judge further made clear that the duties imposed on legal representatives by the Pilot Scheme to cooperate with representatives of the other side so as to promote an efficient and cost-effective disclosure process will apply to cases where the disclosure order was made before the introduction of the Pilot Scheme. This means that parties’ conduct in the disclosure process will be assessed in line with the Pilot Scheme, regardless of when the order for disclosure was made.
For more detail on the Disclosure Pilot Scheme, see our article here.
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