I enjoyed reading the write up of Agents’ Mutual Ltd v Gascoigne Halman Ltd [2019] EWHC 2104 (CH) by Anna Pertoldi and Maura McIntosh from Herbert Smith Freehills. This is a relatively new case looking at the implementation of the disclosure pilot (CPR Practice Direction 51U) and specifically an application to disclose further documents.
In this case, a relatively few number of documents were disclosed under Model D disclosure under the pilot scheme and there was an application to extend this. The judge found that there had been no failure in disclosure and the application represented a completely new approach that was not driven by an inadequacy. The judge emphasized the need for parties to engage and agree the search methodology and approach prior to any manual review as: “it is the manual review that costs time and money…”.
I think this emphasizes the importance to fully consider how to approach disclosure in any case and to ensure that terms of any agreement are fully understood. This requires an understanding from not just a legal perspective but also from a technological perspective to ensure that the approach is fully understood, as are the likely results. To do this, it is important to engage experts early to ensure that the exercise is being appropriately scoped and documented, as well as a defensible position being agreed to complete the exercise.
One should not look to agree an approach or criteria (e.g. key words) of an approach blindly, as to do so can lead to unforeseen consequences. This is true when considering the approach from your own side but also from the opponents. It is advisable to get to grips with the data quickly and to use real data and real results to help drive the decisions being made – from as simply as testing a keyword before agreeing to it so that the results are known and appreciated beforehand.
It is clear that disclosure is becoming a more tactical issue in certain cases and having knowledge of the data and likely implications of different approaches before seeking agreement, can be vital in helping shape the best approach for a case. Early engagement of experts can be key in ensuring that data and technology aspects are appropriately considered.
The decision illustrates that the courts will carefully scrutinise an order for further disclosure under the disclosure pilot, whether it is framed as an application to enforce compliance with an existing order or to vary such an order by requiring additional disclosure. In each case, the court must be satisfied that the further order is reasonable and proportionate. And, if what is sought is a variation of the original order, there is the further requirement that the variation is necessary for the just disposal of the proceedings. Interestingly, the judge found that the applicant had not established that there was any deficiency in the defendants’ disclosure. The fact that only a small number of documents had been produced was not, in itself, a deficiency...
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