On 1 January 2019, a disclosure pilot scheme (the DPS)1 was launched in the Business and Property Courts of England and Wales. The DPS applies not only to claims that come into existence after 1 January 2019, but also to claims that were commenced prior to that date. However, there is an element of uncertainty in respect of the treatment of pre-1 January 2019 cases because the DPS does not contain any transitional provisions.
This client alert examines one of the first judicial decisions to shed light on this topic, UTB LLC v. Sheffield United Ltd and others. For an overview of disclosure under the DPS and its impact more generally, please also read our previous client alert on this topic.
The case concerned a shareholder dispute involving Sheffield United Football Club. One of the defendants (Sheffield United) made an interlocutory application, including: (a) a request for disclosure of further documents; and (b) a challenge to another party’s claims to privilege in respect of certain documents.
Application of the DPS considered
To resolve the questions before the court, Sir Geoffrey Vos, Chancellor of the High Court, first had to decide which rules applied: the DPS or the previous rules, CPR 31.
The case had been commenced, and an order for standard disclosure was made, prior to 1 January 2019. This led both parties to conclude that CPR 31 (and not the DPS) applied. The judgment makes it clear that in drawing this conclusion, the parties were influenced by the procedural guidance in the White Book, which stated2 that the DPS “does not apply to any proceedings where a disclosure order has been made before [the DPS] came into force unless that order is set aside or varied” (emphasis added).
However, contrary to expectation, Sir Geoffrey held that the DPS applied to Sheffield United’s disclosure application, notwithstanding that an order for standard disclosure had already been made. He acknowledged that paragraph 1.3 of the DPS states that it will “not disturb an order for disclosure made before [1 January 2019] ... unless that order is varied or set aside”. Nonetheless, he concluded that the DPS would apply here because the absence of transitional provisions from the DPS was deliberate and indicated that the DPS applied to “all existing proceedings (apart from those specifically excluded) even where an initial disclosure order had been made” (emphasis added).3
Sir Geoffrey, who is editor-in-chief of the White Book, confirmed that the White Book guidance was wrong. Indeed, the relevant provision has since been amended to read that the DPS does not have “a retrospective effect”.