By Dr Tristan Jenkinson

Introduction

I’ve seen some interesting points covered in cases recently, and thought that it might be helpful to share. In particular two cases which cover different angles to the new disclosure rules.

A (Very Brief) New Rules Recap

As they are covered in depth in the cases below, I thought that it might be helpful to recap a few points on the new disclosure rules. If you’re familiar with the rules, please feel free to skip straight to the case discussions.

As you may recall, after a lengthy pilot process under Practice Direction 51U (PD51U), the new disclosure rules were finalised and implemented back in October 2022 as Practice Direction 57AD (PD57AD).

These new rules replaced the idea of “standard disclosure” which was used in the previous rules defined in Civil Procedure Rules 31 (CPR31).

The new rules take an issue based approach. For each issue in the case, a different model could be used for disclosure, with different models representing differing levels regarding the depth of disclosure. You can read more about the models in my article here.

As well as including the new rules and approach, PD57AD included a Section II. This was effectively the language from the pre-existing rules which had survived in place from CPR31.

With all that said, lets jump into the first case I want to talk about…

Not Quite the New Rules – A Shout Out to Standard Disclosure?

The first case I want to talk about is a really interesting call back to standard disclosure, something that, in theory does not exist since the implementation of the new rules.

In Diamond Bus Ltd v Transport for West Midlands (TfWM) [2023] EWHC 2099 (Comm), there is a disagreement between the parties regarding reimbursement for services run by Diamond during various timeframes. The dispute has been running for many years. No claim has yet been filed, though there is anticipation of future proceedings.

With that in mind, Diamond has filed an application for pre-action disclosure.

As is explained in the judgment at paragraph 32, because there are no proceedings yet in place, this disclosure falls under CPR31.16 – one of the CPR31 rules that survives in PD57AD Section II.

CPR 31.16 itself explains that to make a pre-action application to the court, there are a number of criteria that must be met. These criteria include:

• The applicant (Diamond in this case) and respondent (TfWM in this case) must both be likely to be parties to subsequent proceedings
• If those proceedings had started, the documents being requested in the application would be covered in standard disclosure

What is really interesting here, is that the test in CPR 31.16 refers to standard disclosure which under PD57AD no longer exists. It is defined under CPR 31.6, which is not part of PD57AD Section II (it did not survive into the new rules). The definition is however, still available under the original CPR 31.6.

This use of the old school “standard disclosure” does appear at odds to the language used in PD57AD (given that CPR31.6 is not included in Section II), which sets out in paragraph 1.8:

“Save for those provisions of CPR Part 31 that are set out in Section II, and the related provisions of Practice Directions 31A and 31B, CPR Part 31 and Practice Directions 31A and 31B shall not apply to any proceedings falling within this Practice Direction.”

So how is this dealt with in practice?

It is helpful to note that this is not the first time that this issue of pre-action disclosure under the new rules has been visited. Under the Disclosure Pilot Scheme (PD51U) Justice Knowles looked at this same issue for A v B [2019] 10 WLUK 65. You can find summaries of this from Stewarts here and from Addleshaw Goddard here.

The A v B case was very different, and the request for disclosure was far broader. The request was dismissed. There were several reasons for this, though it was made clear that the new rules provided an approach (issue based disclosure) that would be more suitable than the proposed pre-action disclosure.

The Stewarts article in particular states:

“… although PD 51U makes it clear that the test for pre-action disclosure is that outlined in CPR 31.6, the application of that test in practice, in the context of cases involved in the pilot, appears to be more stringent than if disclosure were taking place under Part 31”

The Diamond Buses judgment references the Chancery Guide 2022 (updated in June 2023), pointing out that section 7.32 of the Guide states:

“The jurisdictional criteria in CPR 31.16 still require consideration of whether the documents would fall within the scope of ‘standard disclosure’ under CPR 31.6. However, when considering whether to make an order, the court should take into account that if proceedings are brought they are likely to be subject to PD 57AD, where the court would work with the parties to define the issues for disclosure and apply the most appropriate disclosure model (paragraph 8 of PD 57AD)”

Based on this information from the Chancery Guide, it appears that regardless of the specific wording within PD57AD, both the standard disclosure approach, and disclosure under the new rules, need to be taken into account.

The Menu Option in Practice

The reason that this case caught my eye was because it really demonstrates the menu option (i.e. different models for each issue) in action. The matter also highlights that the court needs to understand the potential limitations of different menu options, as well available approaches to resolve any potential reported issues.

The case in Rolls-Royce Holdings Plc v Goodrich Corporation ([2023] EWHC 1637 (Comm)) relates to a joint venture between the parties and a related agreement which would give Rolls Royce the right to purchase a resulting part of Goodrich’s business.

Rolls Royce used model B for disclosure relating to the claim value. To recap, model B is disclosure of key documents, and other documents required to understand the claim or defence (for more details, I talk about the different models some time ago here).

Goodrich were concerned that evidence was (initially) withheld by Rolls Royce. The disclosure had been 16,000 documents (after 1.82 million were collected and 32,000 reviewed).

Justice Foxton points out in paragraph 137 that the reason the new rules were introduced was to “streamline the disclosure process” and that where this is done using proportionate searches “there will not be a complete documentary record at the trial”.

The judgment continues to explain that if there is a suggestion that documents of import have been missed, there are a number of options, such as an application for supplemental disclosure, further searches under the court’s direction, or additional searches performed by consent. In this matter additional searches were carried out by consent, and additional material was found and disclosed.

Justice Foxton concludes:

“It is axiomatic that the benefits which Practice Direction 57AD is intended to bring will be largely neutralised if the absence, without more, of a document at trial which must once have existed is sufficient to justify an adverse inference.”

This recognises that disclosure is not designed to always provide everything (especially the more restrictive models), but if something has been missed, it may be that additional disclosure can be requested or provided.

It must be remembered that model B was in place here. Had this been a (much wider) model D or E disclosure then it is possible that more questions may have been asked regarding the content of the files which were not originally disclosed and how they were initially missed.

Regardless, it should be repeated that disclosure is not designed to be a perfect process. This case reminded me of a comment I have always liked from Justice Morgan in the Digicel case, about the use of, what was then, standard disclosure:

“… it must be remembered that what is generally required by an order for standard disclosure is ‘a reasonable search’ for relevant documents. Thus, the rules do not require that no stone should be left unturned. This may mean that a relevant document, even “a smoking gun” is not found.”

For those who may be unfamiliar with the matter, it is one of the cornerstones of disclosure in the UK, and something I discussed at more length in my history of disclosure series.

Conclusion

Just a couple of cases to run through here, but interesting ones none the less, one focusing on pre-action disclosure requests under the new rule, and clarifying how those are likely to be approached, and a second indicating how the menu system is working, together with a reminder that the disclosure process is not designed to be perfect.