Judge: Disclosure pilot demands co-operation, not unilateral action

Worster: Pilot built on parties’ duties to co-operate

Parties in disagreement over how to proceed with disclosure under the pilot should not stop talking or engage in “point-scoring correspondence”, a judge has warned.

He said the pilot did not allow a party to act unilaterally in the absence of agreement with the other side.

His Honour Judge Worster in the Circuit Commercial Court in Birmingham was ruling in AAH Pharmaceuticals Ltd & Anor v Jhoots Healthcare Ltd & Anor [2020] EWHC 2524 (Comm), a dispute between a pharmaceutical wholesaler and retailer. Potentially millions of documents are subject to disclosure.

At the case and costs management conference in May, Mr Justice Waksman approved the single joint disclosure review document, but significant differences between the parties persisted around keywords and other issues. The claimants refused to continue discussing them and told the defendants to apply to the court instead if they wanted to pursue them.

HHJ Worster said: “The working through of the process of disclosure in a case like this is bound to throw up problems and genuine differences of view.

“But it does not assist the process of resolving those problems for one party to say (as the claimants have here) we are not going to correspond with you on this issue anymore. Nor is it helpful to engage in confrontational or point scoring correspondence.

“The claimants see some deliberate attempt on the part of the defendants to delay the case. I have not reached that conclusion.”

The judge noted that the defendants responded quickly to the claimants’ letters, had agreed “a good number of issues” and offered video or telephone calls.

“The defendants may not agree with the claimants’ views, and they may be wrong about that. But instead of ending the dialogue, the claimants should attempt to persuade the defendants that what they propose is worth trying, and offer them some comfort about the areas of relevant disclosure the defendants say will be missed.

“If that comes to nothing, then the next step is to ask for the court’s guidance at a disclosure guidance hearing. If the defendants are taking an unreasonable view, and deliberately delaying matters, that will rebound on them.”

HHJ Worster said that, in the absence of agreement, the pilot envisaged recourse to the court.

“In the course of argument it became apparent that the parties took a fundamentally different view of how the pilot worked in this respect.

“The claimants’ approach was that subject to complying with their duties of disclosure, they could proceed with their searches without the agreement of the defendants. The defendants disagreed. The claimants could not proceed unilaterally.”

The judge said the pilot was built on the parties’ duties to co-operate and assist the court, noting the comments of the outgoing Chancellor of the High Court, Sir Geoffrey Vos, that failing to comply would lead to serious adverse costs consequences.

“I do not regard the defendants’ approach to this matter as a tactic to delay the trial. If I did then I would dismiss the application with costs on an indemnity basis to be paid forthwith, and direct that the disclosure exercise proceed as envisaged by the claimants.

“The claimants may be on the right lines by pairing search terms and using sub-groups, but they should not have refused to provide the defendants with further information or ended the dialogue.”

The claimants had raised “the spectre of the cynical litigant deliberately refusing to agree sensible proposals”, HHJ Worster noted.

“That of course would be a breach of the duty to cooperate. The remedy is to use the machinery provided by the pilot and apply for a disclosure guidance hearing or (if the case warrants it) to apply to vary the order.

“The claimants concern to keep to the timetable is admirable, but proceeding unilaterally in this case has, in the event, caused both sides to spend time and money on this application which would have been better spent in conference calls sorting out the ‘nitty gritty’.”

The judge added: “If the pilot allowed for a party to proceed unilaterally on these matters it would serve to weaken the duty to cooperate. That runs counter to the culture the pilot promotes.”

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