The chancellor of the High Court has made clear all existing cases must be subject to new disclosure procedures – contradicting the standard reference manual on litigation.
In a case dealing with preliminary issues in the ownership dispute UTB LLC v Sheffield United Ltd & Ors, Sir Geoffrey Vos said the White Book, published earlier this year, had made a mistake in stating when procedures apply.
Sir Geoffrey was required to decide the circumstances in which the new PD51U – the disclosure pilot for the business and property courts – should come into force. Both parties had assumed the pilot did not apply because an order for standard disclosure had already been made before 1 January, when the pilot started.
The court heard lawyers were under the impression that PD51U did not apply to existing proceedings – a view apparently backed up by the new edition of the White Book, which said the order had to be set aside or varied first.
However Sir Geoffrey said this sentence of the White Book was wrong, adding: ‘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.’
Sir Geoffrey said there had been a misunderstanding of the pilot where it states the new procedure should ’not disturb an order for disclosure made before [1st January 2019] … unless that order is varied or set aside’. This, he said, did not mean new rules could not be applied to existing proceedings. He stated 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, even in a case where a disclosure order was made before that date.
He also made clear that just because PD51U refers to new concepts such as ‘extended disclosure’ and ‘issues for disclosure’ that did not exist before 1 January 2019, they should also apply to existing cases.
The pilot is intended to help the courts deal with vast swathes of electronic documents generated by modern businesses. Parties are under a duty to preserve documents, disclose adverse documents, comply with disclosure orders, undertake a responsible and conscientious search for documents, act honestly and avoid document-dumping.