Practical consequences – belated completion of DPS steps

In determining the question of whether the application for further disclosure should be granted, Sir Geoffrey relied on paragraph 18 of the DPS, which entitles the court to make an additional order for disclosure of specific documents “relating to a particular Issue for Disclosure”.⁴ To enable this assessment, a list of the issues for disclosure was required. Although no such list had been agreed between the parties (because at the relevant time the DPS had not been introduced), Sir Geoffrey nonetheless required such a list to be drawn up and agreed.

Parties should therefore be aware that in similar transitional cases where a disclosure order was made prior to 1 January 2019, the court may nonetheless require certain steps in the disclosure process under the DPS to be taken belatedly if this is necessary to resolve the issues before the court. It is clear from the judgment in this case that all parties to transitional cases who wish to make an application for further documents should give detailed thought to the new rules and specifically to the way in which the rules will affect such application.

Emphasis on reasonableness, cooperation and proportionality

Within his judgment, Sir Geoffrey was at times critical of the parties’ conduct. He stated that the entire application was “outside the spirit and letter of PD 51U”⁵ and emphasised that the DPS required a cultural change because it operated along different lines driven by the principles of cooperation and proportionality.⁶ The requirement for the parties to cooperate was described as of the greatest importance under the DPS. Sir Geoffrey considered that these principles had not been sufficiently heeded. In particular, not all requested documents were relevant to the key issue in dispute between the parties and insignificant points had been raised in support of the challenge on privilege. Sir Geoffrey emphasised that parties must “focus on the issues that require resolution, and not allow themselves to take every point, however small, nor to permit their mistrust … to become the driving force behind the litigation”.⁷

Proportionality strongly influenced the approach taken by the court in determining the application. Out of over 500 documents in respect of which the claim to privilege was challenged, Sir Geoffrey inspected only two (where the challenge to privilege was strongest). Having satisfied himself that these documents were indeed privileged, he declined to inspect any others.

The strong criticism levelled against the parties within the judgment is clear. Notwithstanding that the claim had a substantial value and included an allegation of conspiracy, the court was not prepared to excuse the lack of cooperation or allow the mistrust between the parties to dictate the course of the litigation. This case demonstrates that the courts appear to be adopting a robust approach to safeguarding and enforcing the DPS’ principles of proportionality, reasonableness and cooperation. Parties will therefore need to consider and embrace these principles in addition to the specific procedural requirements within the DPS.

Concluding remarks

This judgment demonstrates the willingness of the courts to actively engage with, adopt and promote the DPS. If this decision provides an indication of how the courts will seek to implement the DPS in future, parties involved in all cases, whether new or transitional, must now expect to be held to the new rules, including the guiding principles underlying the DPS. Specifically, this judgment has clarified that:

1. A disclosure order made prior to the coming into force of the DPS will be left undisturbed and must be complied with.
2. The DPS will apply to cases even if an order for disclosure has already been made prior to 1 January 2019.
3. After 1 January 2019, any application for further disclosure will be subject to the DPS.
4. Where the resolution of an application relating to disclosure requires steps specified in the DPS, but not required under the previous regime,⁸ such steps may have to be taken out of sequence or ‘belatedly’.
5. Parties must focus on the key issues in dispute between them and must now adopt the principles of cooperation, reasonableness and proportionality in dealing with all aspects of the disclosure process.

1. Contained in Practice Direction 51U.
2. See White Book, 2019 edition, guidance to CPR Part 51.2.10.
3. At para. 16 of the judgment.
4. At para. 19 of the judgment.
5. At para. 97 of the judgment.
6. At para. 75 of the judgment.
7. At para. 6 of the judgment.
8. CPR 31.

Client Alert 2019-148