Interesting article by Anna Pertoldi, Maura McIntosh and Jan O'Neill from Herbert Smith Freehills on the recent judgement in Vannin Capital PCC v RBOS Shareholders Action Group Ltd  EWHC 1617 (Ch).
The case sheds more light on how the courts will view disclosure applications under the new disclosure pilot scheme which has applied in the Business and Property Courts since 1 January 2019. The case related to an extended disclosure order and the judgement focused on three key areas:
- Disclosure guidance hearings, as set out in paragraph 11 of Practice Direction 51U encourages parties to seek guidance from the court by way of a discussion with the court in advance of or after a case management conference. This had not happened in this case, and referring to the application for an extended disclosure, the deputy judge commented that this was just the sort of situation where guidance could have been sought.
- The deputy judge rejected the argument that the order could not be varied unless the criteria identified in Tibbles v SIG Plc  1 WLR 2591 were met, as Paragraph 18 of Practice Direction 51U allows the court to make an order that varies an order for extended disclosure, if it is “...necessary for the just disposal of the proceedings and is reasonable and proportionate.”
- The deputy judge also rejected the argument that the specific documents (board minutes and associated documents), if relevant, would have been included in the documents received from the custodians and therefore no additional search was required. It was found that those documents were within the scope of the DRD and the defendants were therefore required to carry out proper searches for them.
This case continues to build on the theme seen now over several cases where the courts are enforcing the new rules set out in Practice Direction 51U. Everyone needs to carefully consider these, how they impact their case and take appropriate measures to ensure that they are compliant.
The decision clarifies that, in applying to vary a disclosure order under the pilot rules, there is no need to satisfy the so-called Tibbles criteria, ie that there has been a material change of circumstances or the order was based on misstated facts. ... In giving judgment the deputy judge also took the opportunity to encourage parties to make use of the procedure established under the pilot for disclosure guidance hearings of no more than 30 minutes. These are intended to allow parties to obtain the assistance of the court, in a relatively informal way, to resolve issues relating to the scope of disclosure or implementation of a disclosure order.