I enjoyed reading this update from Hannah Bradley at Addleshaw Goddard – especially the precise overview of some of the key cases where the Pilot has raised its head. We should really be getting used to the Pilot as we are now almost approaching its anniversary…where did that year go I ask myself! It is important for everyone to be familiar with and comfortable with the different options available under the Pilot. This is not only because as time presses it is going to be more and more relevant to cases, but also because CPR 31 is likely to undergo changes to reflect the Pilot and feedback from it.
One of the key tasks when considering disclosure under the Pilot is the early appreciation of what data you are dealing with. This means understanding the computer systems used by clients during the time frame the dispute relates to. This is not always the same systems used now; nor is it always the systems “IT” think were used at the time. Therefore, it is important to understand how the relevant custodians really used data and how they communicated. This allows for a reasoned and proportionate approach to be undertaken; as well as providing insights on which model of disclosure might be most applicable.
Not only does the early insights into data provide you with the above benefits, but it also allows for proposals and counter-suggestions from opposing parties to be quickly assessed and responded to – avoiding the trap of agreeing to something without knowing what that means. It is also important to understand that all parties understand fully what is being agreed to and what is not – to avoid subsequent disagreements over the terms of any agreed disclosure approach.
The Pilot is not going away and in all likelihood much of what we see will make its way in to CPR 31…getting an early understanding and view of the data is a key weapon in dealing with this efficiently and effectively.
Although the Pilot applies initially for a two year period and is currently limited to the Business and Property Courts, it is expected to be made permanent for those courts, and may be applied more widely, after the Pilot stage.