The Disclosure Pilot, or Practice Direction 51U, is now into the second year of the two year pilot scheme. In McParland & Partners Ltd v Whitehead  EWHC 298 (Ch), The Chancellor (Sir Geoffrey Vos) took the opportunity to clarify certain aspects of the Disclosure Pilot as described in this article by Anna Pertoldi and Maura McIntosh from Herbert Smith Freehills.
The Chancellor focused on three specific aspects of the Disclosure Pilot as set out below:
- The identification of issues: it is not simply the case that you need to reiterate the issues raised in pleading, but rather it should focus on the issues where the parties believe "contemporaneous documents" will need to be reviewed in order to fully consider the arguments being made. This does not mean that every issue or argument within the case needs to be considered.
- Which model to use: The Chancellor focused on the fact that parties should not overly complicate the issue as this can increase time and costs and normally. In this case, a mixture of Model C and Model D was recommended for different categories of issue within the case.
- Cooperation between the parties: although clearly stating this was the case between the parties in this case, The Chancellor made it very clear that it was totally unacceptable "...to use the Disclosure Pilot as a stick with which to beat their opponents."
This case builds on previous cases and clearly shows the parties must take the Disclosure Pilot seriously, they must seriously consider the requirements of it, think through which model(s) to use and enter into process with cooperation in mind. To do this effectively, it is important to consider these issues early on in proceedings and to get a full appreciation of where data and documents are likely to exist. Having a better understanding of the relevant technology used by the parties as well as getting early data insights, can be really beneficial in situations such as this as it allows for the legal and technological issues to be integrated and fully considered.
The Chancellor’s main message appears to be that parties should avoid over-complicating their approach to identifying the Issues for Disclosure and choosing between the disclosure models. In particular: The Issues for Disclosure are not the same as the issues to be determined at trial; they should be limited to those issues the court will need to determine with reference to contemporaneous documents... The parties had also over-complicated the process by proposing a variety of models C and D for the five breach issues they had identified... The Chancellor also emphasised the need for a high level of cooperation, saying that some parties had sought to use the pilot as a “stick with which to beat their opponents” (though he did not make that criticism of the parties and their solicitors in the present case).