UTB LLC v Sheffield United Ltd & others provide a useful insight into how judges will view and consider the new disclosure pilot. Much of the case and ruling focused on the timing of specific disclosure orders, with an initial order for standard disclosure being made prior to the pilot scheme coming into effect, followed by an application for further disclosure after the pilot scheme had started.
This specific issue will obviously fade with time - as there is only so much time when this can occur. However, there were a number of points made that will live longer, specifically:
- An ever increasing focus on proportionality when considering applications for different models of disclosure; and
- A drive towards more cooperation to ensure that disclosure is "...reliable, efficient and cost-effective..."
It will be interesting to see how the new pilot scheme continues to play out, although I see the above sentiments becoming more common place. For those in the midst of disclosure, I think there is going to be more focus on understanding the pros and cons of each model, deciding on a preferred position and then building a case to support that. Obviously, much of that will depend on the specifics of each case as well as the documents available.
However, preparation will be vital and having a good understanding of the data involved as well as how the different models would play out will only become more important.
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.