New Commercial Court Guide Benches Old Disclosure RulesDownload this article
The recently published eleventh edition of the Commercial Court Guide (the Guide) puts the Disclosure Pilot Scheme (DPS) front and centre relegating the old regime to an appendix. The DPS, which is governed by Practice Direction 51U, has applied to most proceedings in the Commercial Court since the beginning of 2019. However, with no substantive update since 2017, it is only now that the Guide explicitly gives precedence to the DPS and the principles that underpin it.
The purpose of disclosure is to assist in achieving the fair disposal and trial of a claim. However, as practitioners should be acutely aware, regard must be given to what is reasonable and proportionate to limit disclosure to what is necessary to deal with the case justly. Central to achieving this is the need to identify key issues relevant to disclosure and confine work and expenditure accordingly. As the Guide itself acknowledges, this harks back to the Commercial Court’s origins where the Notice as to Commercial Causes identified the need for the judge to ensure the speedy determination of the issues really in controversy between the parties.
Going above and beyond the DPS, the new Guide gives further guidance on how parties can and should achieve disclosure at proportionate cost. For example, the guide suggests that a junior advocate should prepare and undertake the argument relating to disclosure issues where they arise at a Case Management Conference.
In addition, the Guide emphasises that the Disclosure Review Document (DRD) should be kept simple and concise. Parties are obliged to cooperate and they should not allow the settling of the DRD to become contentious, time consuming or expensive. These are terms that have become widely synonymous with the DRD since its inception but, as the Guide indicates, parties should seek to address differences and seek guidance from the Court where practicable.
When it comes to the issues for disclosure these should be limited in number and drafted in simple, concise terms designed to make it easy for persons reviewing documents to assess whether they ought to be disclosed. This is a sensible nod to the fact that often it is senior members of the legal team that are involved in drafting the Issues for disclosure but junior members of the team (often paralegals) reviewing the documents – as the saying goes, a stitch in time saves nine.
The Guide also suggests that the list of issues for disclosure should, in most cases, be shorter than the list of common ground and issues typically prepared shortly after pleadings have been exchanged in Commercial Court cases.
One of the latest tweaks to the DPS, the introduction of the Less Complex Claim regime, is highlighted in the Guide. In every case, the Court expects parties to give careful consideration, whatever the financial value or general complexity, as to whether the Less Complex Claim regime should apply.
Parties that choose to ignore this latest guidance without good reason may find the Court disallowing costs or awarding costs against them.
With the Guide’s shift in focus, it appears the Commercial Court expects a substantive rule change, in line with the DPS, to follow at end the year when the extended four year trial runs its course. As for the guidance for cases not subject to the DPS, well, this can be found at the back in Appendix 15 of the Guide!
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This information is provided for general purposes only and does not constitute legal advice.
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