Ashleigh Wong and Matthew Forsyth in our Dispute Resolution team reflect on the court’s application of the New Disclosure Regime in 2024.
Scope
Practice Direction 57AD (‘PD 57AD’) applies to disclosure in proceedings within the Business and Property Courts. The Business and Property Courts is an umbrella term for the specialist jurisdictions of the High Court. As such it encompasses, amongst others, the Commercial Court and the Property, Trusts and Probate List.
PD 57AD affects disclosure in the generality of claims in the Business and Property Courts. A notable exception to its application is that it will not, unless otherwise ordered, apply to “claims proceeding under Part 8” (a streamlined process reserved for claims with, for example, limited factual dispute). The other claims in which PD 57AD will not apply are set out at paragraph 1.4 of PD 57AD, and include Competition claims, and claims within the Intellectual Property and Enterprise Court.
Initial Disclosure
Initial Disclosure involves each party providing to all other parties, at the same time as its statement of case, copies of the key documents (a) on which it has relied in support of its claims or defences advanced and (b) that are necessary to enable the other parties to understand the claim or defence they have to meet.
Initial Disclosure is not mandatory. The parties may agree in writing (either before or after commencement of proceedings) that it may be dispensed with or deferred (PD 57AD, para. 5.8). The court may also order that Initial Disclosure is not required (PD 57AD, para. 5.10).
The obligations placed upon the parties are not in any event particularly extensive. It is not incumbent upon any party to undertake any additional search for documents beyond that which it may have already undertaken. Parties also need not disclose any adverse documents by way of Initial Disclosure.
Parties should ordinarily give Initial Disclosure by providing to all other parties, at the same time as their statement of case, an Initial Disclosure List of Documents. If a party fails to make Initial Disclosure, then the court may require them to do so; however, it is noted in PD 57AD that a complaint about Initial Disclosure shall usually be dealt with at the first CMC (para. 5.12).
Disclosure Review Document
The ‘Disclosure Review Document’ (‘DRD’) must only be completed where what is known as ‘Extended Disclosure’ (Models C to E) is sought by a party in any respect. The purpose of the DRD in these circumstances is for the parties to identity and seek to agree the scope of the extended disclosure sought.
Section 1A of the DRD should set out the ‘List of Issues’ for disclosure and should indicate the parties’ respective suggestions for the appropriate disclosure model.
Where completion of the DRD in full is required, the parties must make reasonable and proportionate efforts to seek to agree its contents. They are expected to cooperate and engage constructively in the process and should not, for example, use requests for disclosure of particular documents or narrow classes of documents under Model C in a “tactical or oppressive way” (PD 57AD, para. 10.4).
Extended Disclosure
Extended Disclosure may take the form of one or more of five disclosure models (Models A-E) which are available for cases subject to the mainstream PD 57AD procedure. When making a disclosure order the court has a very wide discretion. Where a search-based model of disclosure is sought, PD 57AD, para. 9.6 obliges the parties to discuss and seek to agree the particular scope of the search. The court may give directions and include “any provision that is appropriate” (PD 57AD, para. 9.7).
PD 57AD para. 12.1 sets out the steps required to comply with an order for Extended Disclosure. Parties must serve a Disclosure Certificate, accompanied by an Extended Disclosure list of documents.
Non-Compliance
PD 57AD para. 20 provides that, throughout disclosure, the court retains its full powers of case management and, accordingly, the full range of sanctions available to it. PD 57AD expressly identifies the sanctions available to the court in event of non-compliance. Those powers retained by the court include its powers to adjourn any hearing or to make an adverse order for costs. It also specifically provides for a party to make an application to court where they feel that another party has failed to comply with an order for Extended Disclosure (PD 57AD 17).
These sanctions and their impact upon the party in breach should not be underestimated. In Republic of Mozambique v Credit Suisse International and others [2023] EWHC 514 (Comm), several of Mozambique’s government entities had essentially refused to cooperate with the disclosure exercise by limiting their solicitors’ access to their records. Robin Knowles J commented that “the potential for striking out [i.e. the dismissal of the offending party’s statement of case] to be the final remedy for non-compliance where the fairness of trial is threatened is very real in a case of this nature” and agreed that the Court must “be prepared to use jeopardy where appropriate to achieve compliance”.
Comment
The approach to disclosure in the Business and Property Courts relies heavily upon co-operation. Parties are expected to take a transparent and ‘cards up’ approach, so that the Court has all of the information it requires to determine the claim in a fair way. PD 57AD provides a clear roadmap for this, including by encouraging a dialogue between the parties as regards the issues for disclosure at an early stage in the proceedings. It is very important that the parties engage with this process.