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Vos: Disclosure pilot applies even if order made before January 2019

Vos: White Book wrong

The disclosure pilot applies to all Business and Property Courts proceedings, including cases where a disclosure order was made before 1 January 2019, the Chancellor of the High Court has ruled.

Sir Geoffrey Vos said the newly published White Book was wrong on this point.

He was dealing with preliminary issues in UTB LLC v Sheffield United Ltd & Ors [2019] EWHC 914 (Ch) [1], a dispute over the ownership of the football club

One of them was the question of the circumstances in which practice direction 51U, the disclosure pilot, applied. The parties had assumed that part 31 applied because an order for standard disclosure was made before 1 January 2019, when the pilot commenced, even though the latest application came after.

Counsel for the applicant told Sir Geoffrey that practitioners “were under the impression” that PD51U did not apply in such circumstances.

Paragraph 1.2 – which says the pilot applies to existing and new proceedings – showed that this was mistaken, the judge said. “It is right to say, however, as paragraph 1.3 provides, that ‘the pilot shall not disturb an order for disclosure made before [1 January 2019]’.”

Further, the new edition of the White Book (at part 51.2.10) said the pilot “does not apply to any proceedings where a disclosure order had been made before it came into force unless that order is set aside or varied”.

Sir Geoffrey said: “It seems to me that that part of that sentence is wrong.

“The pilot was deliberately put in place without transitional provisions so that it would apply to all existing proceedings (apart from those specifically excluded) even where an initial disclosure order had been made.

“It seems to me that the note is a misunderstanding of paragraph 1.3… Plainly, it is one thing to say that a pre-existing order will not be disturbed by the commencement of the pilot, and quite another to say that the pilot is not applicable to any proceedings where a disclosure order has already been made. Only the first is correct.

“To be clear, I am quite satisfied that the pilot was intended to apply and does apply, to all relevant proceedings subsisting in the Business and Property Courts, whether started before or after 1 January 2019, even in a case where a disclosure order was made before 1 January 2019 under CPR part 31.”

He noted also that Mr Edwin Johnson QC, sitting as a deputy High Court judge, came to the same conclusion in the unreported case of White Winston Select Asset Funds LLC v. Mahon (2019), 23/01/2019, where he said that the court had power in these circumstances to make an “equivalent” order to that under part 31.12.

Sir Geoffrey also expressed his concern about how the case was being conducted.

“This dispute has generated thousands of pages of inter-solicitor correspondence, and a dispiriting volume of mistrust,” he said.

“As I said repeatedly in the course of argument, the parties will need to keep proportionality in the forefront of their minds as matters proceed. The Business and Property Courts are indeed willing and able to resolve the most complex of commercial disputes.

“But the parties must focus on the issues that require resolution, and not allow themselves to take every point, however small, nor to permit their mistrust of their opponents to become the driving force behind the litigation.

“There is, I am afraid, a danger of that here. The court expects the parties to cooperate to allow it to achieve a just, expeditious and proportionate resolution of the real commercial issues that separate them. Court proceedings are not a stage for a grudge match.”

He said it was “vitally important” that the central legal and factual issues that divided the parties were identified and agreed, so that the trial judge is able to focus on what he has actually to resolve, “and can do so justly and openly despite the unfortunate hostility that seems to have developed”.