Another case to add to the collection that continues to illustrate how courts will implement the Disclosure Pilot (CPR Practice Direction (PD) 51U). In Maher v Maher  EWHC 3613 (Ch), the High Court declined to order specific disclosure even though the specific disclosure application was intended to rectify a failure to disclose certain documents that may have breached an initial order.
As the write up by the team at Herbert Smith Freehills sets out, the courts will only make additional orders where it is reasonable and proportionate to do so and that the onus is on the applicant to satisfy the court that this requirement has been met. This was not the case here and was compounded by the fact that the non-disclosure was explicitly referred to five months before the disclosure application was issued. Finally, in the judge’s view, the request was likely to be of limited probative value in evaluating the respective cases of the parties.
What this case emphasizes, from a non legal perspective, is the need to deal with issues swiftly, especially if there are concerns about non-compliance of disclosure obligations. The use of appropriate analytical techniques should be considered to help assess what has been provided, what may have been omitted and other issues when disclosure is received from other parties. Any issues identified must then be fully justified in any subsequent application.
A recent High Court decision underlines the strict approach the courts have tended to adopt in considering applications for specific disclosure under the two-year disclosure pilot which has been underway in the Business and Property Courts since the beginning of 2019 and is governed by CPR Practice Direction (PD) 51U: Maher v Maher... The judge considered that the defendants’ failure to disclose the documents in question may have represented a failure adequately to comply with the disclosure order which had been made in this case. However, he emphasised that the court’s approach under the pilot is different from the previous practice... The judge found, however, that this statement had been overtaken by the specific provisions of the disclosure pilot. The onus was therefore on the claimant to satisfy the court that the order sought was reasonable and proportionate.