Chancellor of the High Court considers the scope of the disclosure pilot scheme and privilege issues

An order for standard disclosure was made in these proceedings before 1st January 2019, when the disclosure pilot scheme commenced. The defendant then sought further disclosure of various documents (eg one of the defendant's assets and liabilities). Both parties had initially assumed that CPR r31 continued to apply to that application. The Chancellor of the High Court has now held that that was not correct and that the position is as follows: "Plainly, it is one thing to say that a pre-existing order will not be disturbed by the commencement of the Pilot, and quite another to say that the Pilot is not applicable to any proceedings where a disclosure order has already been made. Only the first is correct".

The judge also highlighted the "culture change" that the pilot scheme was intended to introduce and highlighted that "Extended disclosure is not, therefore, something that should be used as a tactic, let alone a weapon, in hard fought litigation. It is all about the just and proportionate resolution of the real issues in dispute". He doubted whether the parties in this case had taken the duty to cooperate and act proportionately sufficiently seriously.

The claimant claimed legal advice privilege over certain categories of documents sought by one of the parties. Although initially "very reluctant" to inspect two sample, redacted, documents to determine whether privilege had been claimed correctly, the judge ultimately decided to do so, because if they were obviously not privileged, it would be possible to conclude that the party's disclosure exercise had not been conducted properly.

Para 14.1 of the disclosure pilot scheme practice direction (PD51U) confirms that a party can claim privilege over a class of documents and the judge said that "I do not accept that a party claiming privilege has to make that claim with particularity in relation to each document for which privilege is claimed" (in contrast, some textbook commentary supports the view that, under CPR r31, privileged documents should be listed in the same way as non-privileged documents). The judge went on to hold that "It is fair to say, however, that particular circumstances may make it desirable for a clear explanation of the claim to be provided. It is all about the collaborative exercise of giving disclosure on which PD51U concentrates".

It was accepted by the parties that privilege can be claimed where a foreign lawyer's advice is mixed English and foreign law advice and here "There was no reason in theory why he would not want and value legal advice from a local lawyer in relation to the English law agreements he had entered into". On the facts, the lawyer in question had been acting as both a lawyer and a "man of business". The judge went on to find that "Lawyers frequently draft letters and evaluate legal options for their clients as part of the continuum of their advice in relation to the assertion of rights under, and claims that there have been breaches of, legal agreements. That was the situation here". Furthermore, it was held that the application had been "outside the spirit and letter of [the pilot scheme]" because, even if not privileged, the documents being sought would not have advanced the defendant's case: "The proportionate resolution of the pleaded issues in these claims requires a dedicated focus on what really matters".

The other applications for extended disclosure were also refused, on the basis that they were not necessary for the judge's disposal of the proceedings and they were not reasonable and proportionate. The judge was highly critical too of the parties' general approach to the proceedings. He cautioned that "the parties must focus on the issues that require resolution, and not allow themselves to take every point, however small, nor to permit their mistrust of their opponents to become the driving force behind the litigation... The court expects the parties to cooperate to allow it to achieve a just, expeditious and proportionate resolution of the real commercial issues that separate them. Court proceedings are not a stage for a grudge match".

COMMENT: The judge recognised that his ruling regarding the application of the pilot scheme might present some practical difficulties in cases where standard disclosure had been ordered prior to pilot scheme and so, for example, the parties have not already produced a list of issues for disclosure (although a list was produced for the application here). He advised, though, that "The court will interpret the new PD51U in a way that makes it work as effectively in relation to applications for disclosure in proceedings issued after 1st January 2019 as it will in relation to further applications for disclosure made in cases where disclosure was already ordered under CPR Part 31 before that date".

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