An interesting article from the team at Herbert Smith Freehills looking at the recent case: Castle Water Ltd v Thames Water Utilities Ltd [2020] EWHC 1374 (TCC) and what it means in respect to the continued obligation to disclose known adverse documents.

In this case there was a distinction between having to search for these documents and having to check with relevant people whether they were likely to exist.  This is replacing an automated search with one that relies on human memory.

I do not want to propose some ongoing requirement to continually search across entire population of documents infinitude.  But I would imagine on most cases, with documents loaded onto a document management system, that people are already searching for these documents as part of their ongoing process.  I would also imagine that this would extend to when there are fundamental changes to the case.  So I would expect a check to be a search in many cases!

There is also an interesting reminder in this case that the Model C form of disclosure must be focused on the Issues for Disclosure and ensure that they are not so broad as to effectively become a Model D search.

Dealing with these topics is something we regularly tackle and assist clients on - please let me know if you would like to know more!