I enjoyed reading this write up by Mbombo Simpungwe-Kaoma from Hogan Lovells in their Global Insurance Blog. The Disclosure Pilot is now over a year old and cases continue to arise that shows how the courts will approach disclosure under the Pilot. This article neatly sums up three cases focused on, as the article puts it: three C's.
I have previously commented on both the cooperation point (https://amonsocial.alvarezandmarsal.com/post/102fzf4/mcparland-partners-ltd-v-whitehead-and-the-disclosure-pilot) and the control point (https://amonsocial.alvarezandmarsal.com/post/102g1kt/command-of-documents-is-a-key-differentiator-in-any-dispute), but confidentiality is something that is key to many of the cases we work on. It is always going to be a complicated factor in cases where there is an inherent conflict between disclosure of the information and protecting sensitive data.
In these cases, it is important that this conflict and issue is considered at an early stage of the disclosure process, so that workarounds and solutions can be developed to try and bridge the gap. This case demonstrates that the courts will indeed to look to the parties to find practical solutions that bridge the gap between confidentiality and disclosure.
This is a challenge that we have often worked through with clients - putting together a mixture of procedural and technology processes to meet this challenge successfully. If you'd like to know more on how we could help around this or any forensic technology requirements please let us know.
While various judgments have covered a whole host of disclosure issues...the focus of this article is on three recent High Court decisions which have provided helpful clarification in the following areas: Cooperation (McParland v Whitehead [2020] EWHC 298 (Ch)): parties who adopt an uncooperative approach and/or abuse the Disclosure Pilot process for tactical gain have been warned that they may face immediate adverse costs consequences. Confidentiality (SL Claimants v Tesco plc [2019] EWHC 3315 (Ch)): given that the foundation of the Disclosure Pilot is the need to adopt a cooperative approach, the courts will – now more than ever – strive to find a delicate balance between ensuring proper disclosure while preserving the confidentiality of commercially sensitive information. Control, adverse inferences, and Model C issues; Pipia v BGEO Group [2020] EWHC 402 (Comm)): a) re-affirmation of the principle that “control” for the purposes of CPR 31.8/PD 51U includes an “arrangement or understanding” (less than a legally enforceable right) which grants access to the relevant documents, b) an overview of circumstances in which adverse inferences will be drawn from failures to comply with disclosure obligations, and c) helpful commentary on the format and scope of Model C searches.
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