Parties that try to use the disclosure pilot for litigation advantage will face “serious adverse costs consequences”, the Chancellor of the High Court has warned, urging judges to take action if they see it.
Sir Geoffrey Vos also emphasised the need for “a high level of cooperation” between the parties and their lawyers in agreeing the issues for disclosure and completing the disclosure review document (DRD).
He stressed: “Cooperation between legal advisers is imperative. The disclosure pilot must not be used as an opportunity for litigation advantage. If that is attempted, the parties responsible will face serious adverse costs consequences.
The warning comes in the wake of concerns expressed in the Commercial Court users group that some parties were trying to game the pilot.
Sitting in Manchester, Vos LJ used a disclosure guidance hearing in a relatively low-value and uncomplicated case, McParland & Partners Limited & Anr v Whitehead  EWHC 298 (Ch), to issue guidance on the pilot.
He said the pilot should not become a “disproportionately costly exercise”, explaining: “The parties have to think cooperatively and constructively about their dispute and what documents will require to be produced for it to be fairly resolved.
“In smaller-value disputes particularly, but also in higher-value ones, unduly granular and complex solutions should be avoided.”
Vos LJ said the case was an example of how parties in the Business & Property Courts have misunderstood how the disclosure pilot is intended to work. “I do not say that by way of criticism, since I believe that the solicitors have tried on each side to comply with the pilot.”
But it was clear that some parties to litigation in all areas of the Business & Property Courts “have sought to use the disclosure pilot as a stick with which to beat their opponents. Such conduct is entirely unacceptable, and parties can expect to be met with immediately payable adverse costs orders if that is what has happened.
“No advantage can be gained by being difficult about the agreement of Issues for disclosure or of a DRD, and I would expect judges at all levels to be astute to call out any parties that fail properly to cooperate as the disclosure pilot requires.”
Vos LJ said that statements in the rules about the disclosure pilot being built on cooperation were “not intended to be mere exhortation”.
He continued: “The important point for parties to understand is that the identification of issues for disclosure is a quite different exercise from the creation of a list of issues for determination at trial.
“The issues for disclosure are those which require extended disclosure of documents (i.e. further disclosure beyond what has been provided on initial disclosure) to enable them to be fairly and proportionately tried.
“The parties need to start by considering what categories of documents likely to be in the parties’ possession are relevant to the contested issues before the court.”
In the same way that “unduly granular or complex lists” of issues for disclosure should be avoided, the models chosen “should simplify the process rather than complicate it”.
Vos LJ added that the issues for disclosure have an “important function” beyond the case management conference.
“Having framed the scope of the documents to be located and reviewed by the disclosing party, they enable the review of documents to be conducted in an orderly and principled manner.
“Under standard disclosure, the test was whether a document supported or adversely affected a party’s ‘case’. This was far too general. Under the disclosure pilot, the reviewer has defined issues against which documents can be considered. The review should be a far more clinical exercise.”