PRACTICE DIRECTION 57AD – DISCLOSURE IN THE BUSINESS AND PROPERTY COURTS
1. General
1.1 This Practice Direction provides for disclosure in the Business and Property Courts.
1.2 The Commencement Date is 1 October 2022. This Practice Direction applies to existing and new proceedings in the Business and Property Courts of England and Wales and the Business and Property Courts in Birmingham, Bristol, Cardiff, Leeds, Liverpool, Manchester and Newcastle. For the avoidance of doubt, it does not apply in the County Court. This Practice Direction is substantially in the form of (and replaces) Practice Direction 51U.
1.3 This Practice Direction shall not disturb an order for disclosure made before the Commencement Date or before the transfer of proceedings into a Business and Property Court, unless that order is varied or set aside. If proceedings are transferred out of one of the Business and Property Courts into a court that is not one of the Business and Property Courts, any order for disclosure made under this Practice Direction will stand unless and until any other order is made by the transferee court.
1.4 This Practice Direction shall not, unless otherwise ordered, apply to proceedings which are—
(1) a Competition claim as defined in Practice Direction 31C;
(2) a Public Procurement claim;
(3) within the Intellectual Property and Enterprise Court;
(4) within the Admiralty Court;
(5) within the Shorter and Flexible Trials Schemes;
(6) within a fixed costs regime or a capped costs regime; or
(7) claims proceeding under Part 8.
1.5 In the Patents Court, PD63 paragraphs 6.1 to 6.3 will continue to apply under this Practice Direction with the following modification: unless the court expressly orders otherwise, no provision in this practice direction nor any disclosure order made under this Practice Direction will take effect as requiring disclosure wider than is provided for in PD 63 paragraph 6.1.
1.6 For the purposes of this Practice Direction, where its provisions conflict with other provisions of the rules or other Practice Directions, this Practice Direction shall take precedence.
1.7 Terms in Section I of this Practice Direction shall have the meaning given to them in the schedule of definitions at Appendix 1.
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.
1.9 Save that references in Section II to an Electronic Documents Questionnaire should be treated as references to the Disclosure Review Document, nothing in this Practice Direction is intended to change the application or working of those provisions of CPR Part 31 that are set out in Section II and the related provisions of Practice Directions 31A and 31B, and CPR Part 31 as a whole should still be used to interpret those provisions.
1.10 Provisions relating to Extended Disclosure in Less Complex Claims are contained in Appendix 5. Less Complex Claims are defined in paragraph 1.9 of Appendix 1 to this Practice Direction.
1.11 This Practice Direction applies in multi-party cases. However, the court may order that the timetable and procedure is to be varied so as to provide a bespoke timetable and procedure to meet the needs of the individual multi-party case. Any application to the court in this connection should be made at an early stage.
1.12 A party seeking an order for disclosure in a Part 8 claim shall serve and file a List of Issues for Disclosure in relation to which disclosure is sought and the Models that are to be adopted for each issue. The court may adapt the provisions of this Practice Direction in such manner as may be appropriate when making an order for disclosure in a Part 8 claim.
SECTION I
2. Principles, “document”, “adverse” and “known adverse documents”
2.1 Disclosure is important in achieving the fair resolution of civil proceedings. It involves identifying and making available documents that are relevant to the issues in the proceedings.
2.2 For the purpose of disclosure, the term “document” includes any record of any description containing information. The term is further defined below.
2.3 The court expects the parties (and their representatives) to cooperate with each other and to assist the court so that the scope of disclosure, if any, that is required in proceedings can be agreed or determined by the court in the most efficient way possible.
2.4 The court will be concerned to ensure that disclosure is directed to the issues in the proceedings and that the scope of disclosure is not wider than is reasonable and proportionate (as defined in paragraph 6.4) in order fairly to resolve those issues, and specifically the Issues for Disclosure (as defined in paragraph 7.6).
2.5 A “document” may take any form including but not limited to paper or electronic; it may be held by computer or on portable devices such as memory sticks or mobile phones or within databases; it includes e-mail and other electronic communications such as text messages, webmail, social media and voicemail, audio or visual recordings.
2.6 In addition to information that is readily accessible from computer systems and other electronic devices and media, the term “document” extends to information that is stored on servers and back-up systems and electronic information that has been ‘deleted’. It also extends to metadata, and other embedded data which is not typically visible on screen or a printout.
2.7 Disclosure extends to “adverse” documents. A document is “adverse” if it or any information it contains contradicts or materially damages the disclosing party’s contention or version of events on an issue in dispute, or supports the contention or version of events of an opposing party on an issue in dispute, whether or not that issue is one of the agreed Issues for Disclosure.
2.8 “Known adverse documents” are documents (other than privileged documents) that a party is actually aware (without undertaking any further search for documents than it has already undertaken or caused to be undertaken) both (a) are or were previously within its control and (b) are adverse.
2.9 For this purpose a company or organisation is “aware” if any person with accountability or responsibility within the company or organisation for the events or the circumstances which are the subject of the case, or for the conduct of the proceedings, is aware. For this purpose it is also necessary to take reasonable steps to check the position with any person who has had such accountability or responsibility but who has since left the company or organisation.
3. Duties in relation to disclosure
3.1 A person who knows that it is or may become a party to proceedings that have been commenced or who knows that it may become a party to proceedings that may be commenced is under the following duties (“the Disclosure Duties”) to the court—
(1) to take reasonable steps to preserve documents in its control that may be relevant to any issue in the proceedings;
(2) by no later than the time(s) set out in paragraphs 9.1 to 9.3, to disclose known adverse documents, unless they are privileged. This duty exists regardless of whether or not any order for disclosure is made;
(3) to comply with any order for disclosure made by the court;
(4) to undertake any search for documents in a responsible and conscientious manner to fulfil the stated purpose of the search;
(5) to act honestly in relation to the process of giving disclosure and reviewing documents disclosed by the other party; and
(6) to use reasonable efforts to avoid providing documents to another party that have no relevance to the Issues for Disclosure in the proceedings.
3.2 Legal representatives who have the conduct of litigation on behalf of a party to proceedings that have been commenced, or who are instructed with a view to the conduct of litigation where their client knows it may become a party to proceedings that have been or may be commenced, are under the following duties to the court—
(1) to take reasonable steps to preserve documents within their control that may be relevant to any issue in the proceedings;
(2) to take reasonable steps to advise and assist the party to comply with its Disclosure Duties;
(3) to liaise and cooperate with the legal representatives of the other parties to the proceedings (or the other parties where they do not have legal representatives) so as to promote the reliable, efficient and cost-effective conduct of disclosure, including through the use of technology;
(4) to act honestly in relation to the process of giving disclosure and reviewing documents disclosed by the other party; and
(5) to undertake a review to satisfy themselves that any claim by the party to privilege from disclosing a document is properly made and the reason for the claim to privilege is sufficiently explained.
3.3 The duties under paragraphs 3.1 and 3.2 above are continuing duties that last until the conclusion of the proceedings (including any appeal) or until it is clear there will be no proceedings.
3.4 Where there is a known adverse document but it has not been located, the duty to disclose the document is met by that fact being disclosed, subject to any further order that the court may make.
4. Preservation of documents
4.1 Documents to be preserved in accordance with the duties under paragraphs 3.1(1) and 3.2(1) above include documents which might otherwise be deleted or destroyed in accordance with a document retention policy or in the ordinary course of business. Preservation includes, in suitable cases, making copies of sources and documents and storing them.
4.2 The duty under paragraph 3.1(1) and 3.2(1) includes—
(1) an obligation to suspend relevant document deletion or destruction processes for the duration of the proceedings;
(2) in accordance with paragraph 4.3 below, an obligation to send a written notification in any form to relevant employees and former employees of the party where there are reasonable grounds for believing that the employee or former employee may be in possession of disclosable documents which are not also in the party’s possession; and
(3) an obligation to take reasonable steps so that agents or third parties who may hold documents on the party’s behalf do not delete or destroy documents that may be relevant to an issue in the proceedings.
4.3 A written notification under paragraph 4.2 above should—
(1) identify the documents or classes of documents to be preserved; and
(2) notify the recipient that they should not delete or destroy those documents and should take reasonable steps to preserve them.
4.4 Legal representatives who have the conduct of litigation on behalf of a party to proceedings that have been commenced, or who are instructed with a view to the conduct of litigation where their client knows it may become a party to proceedings that have been or may be commenced, must within a reasonable period of being instructed—
(1) notify their client of the need to preserve documents and of their obligations under paragraph 3.1 above; and
(2) obtain written confirmation from their client or an appropriate representative of their client that their client has taken the steps required under paragraphs 4.2 and 4.3 above.
4.5 Each party must confirm in writing (and may do so by their legal representative) when serving their particulars of claim or defence (as appropriate), that steps have been taken to preserve relevant documents in accordance with the duties under paragraph 3.1(1) and 3.2(1) above, and as required by paragraph 4.1 to 4.4 above.
5. Initial Disclosure
5.1 Save as provided below, and save in the case of a Part 7 claim form without particulars of claim, each party must provide to all other parties at the same time as its statement of case an Initial Disclosure List of Documents that lists and is accompanied by copies of—
(1) the key documents on which it has relied (expressly or otherwise) in support of the claims or defences advanced in its statement of case (and including the documents referred to in that statement of case); and
(2) the key documents that are necessary to enable the other parties to understand the claim or defence they have to meet.
5.2 This form of disclosure is known as “Initial Disclosure”.
5.3 Initial Disclosure is not required where—
(1) the parties have agreed to dispense with it (see paragraph 5.8 below);
(2) the court has ordered that it is not required (see paragraph 5.10 below); or
(3) a party concludes and states in writing, approaching the matter in good faith, that giving Initial Disclosure would involve it or any other party providing (after removing duplicates, and including documents referred to at paragraph 5.4(3)(a)) more than (about) whichever is the larger of 1000 pages or 200 documents (or such higher but reasonable figure as the parties may agree), at which point the requirement to give Initial Disclosure ceases for all parties for the purposes of the case.
Documents comprising media not in page form are not included in the calculation of the page or document limit at (3) but, where provided pursuant to a requirement to give Initial Disclosure, should be confined strictly to what is necessary to comply with paragraph 5.1 above.
5.4 A party giving Initial Disclosure—
(1) is under no obligation to undertake a search for documents beyond any search it has already undertaken or caused to be undertaken for the purposes of the proceedings (including in advance of the commencement of the proceedings);
(2) need not provide unless requested documents by way of Initial Disclosure if such documents—
(a) have already been provided to the other party, whether by disclosure before proceedings start (see CPR 31.16) or through pre-action correspondence or otherwise in the period following intimation of the proceedings (and including when giving Initial Disclosure with a statement of case that is being amended); or
(b) are known to be or have been in the other party’s possession;
(3) need not disclose adverse documents by way of Initial Disclosure.
5.5 Unless otherwise ordered, or agreed between the parties, copies of documents shall be provided in electronic form for the purpose of Initial Disclosure. The Initial Disclosure List of Documents should be filed but the documents must not be filed.
5.6 In proceedings where a statement of case is to be served on a defendant out of the jurisdiction Initial Disclosure is not required in respect of that defendant unless and until that defendant files an acknowledgement of service that does not contest the jurisdiction, or files a further acknowledgement of service under CPR 11(7)(b).
5.7 For the avoidance of doubt, Initial Disclosure does not require any document to be translated.
5.8 The parties may agree in writing, before or after the commencement of proceedings, to dispense with, or defer, Initial Disclosure. They may also agree to dispense with the requirement to produce an Initial Disclosure List of Documents. Each party should record its respective reasons for any agreement, so that those reasons may be available to the court, on request, at any case management conference. The court may set aside an agreement to dispense with or defer Initial Disclosure if it considers that Initial Disclosure is likely to provide significant benefits and the costs of providing Initial Disclosure are unlikely to be disproportionate to such benefits.
5.9 The court shall disregard any prior agreement to dispense with Initial Disclosure when considering whether to order Extended Disclosure.
5.10 A party may apply to the court for directions limiting or abrogating the obligation to provide Initial Disclosure. In particular, if a party is requested but does not agree to dispense with Initial Disclosure, the requesting party may apply to the court with notice to the other party for directions limiting or abrogating the obligation to provide Initial Disclosure if it considers compliance with the obligation will incur disproportionate cost or be unduly complex. Such an application must be made by application notice, supported by evidence where necessary, and, save in exceptional cases, will be dealt with without a hearing or at a short telephone hearing.
5.11 In an appropriate case the court may, on application, and whether or not Initial Disclosure has been given, require a party to disclose documents to another party where that is necessary to enable the other party to understand the claim or defence they have to meet or to formulate a defence or a reply.
5.12 A complaint about Initial Disclosure shall be dealt with at the first case management conference unless, exceptionally and on application, the court considers that the issue should be resolved at an earlier hearing.
5.13 A significant failure to comply with the obligation to provide Initial Disclosure may be taken into account by the court when considering whether to make an order for Extended Disclosure and the terms of such an order. It may also result in an adverse order for costs.
5.14 For the avoidance of doubt, nothing in this paragraph affects the operation of paragraph 7.3 of Practice Direction 16.
6. Extended Disclosure
6.1 A party wishing to seek disclosure of documents in addition to, or as an alternative to, Initial Disclosure must request Extended Disclosure. No application notice is required. However, the parties will be expected to have completed the Disclosure Review Document pursuant to paragraphs 7 and following below.
6.2 Save where otherwise provided, Extended Disclosure involves using Disclosure Models (see paragraph 8 below) in respect of Issues for Disclosure which have been identified (see paragraph 7 below).
6.3 The court will only make an order for Extended Disclosure that is search-based (ie Models C, D and/or E) where it is persuaded that it is appropriate to do so in order fairly to resolve one or more of the Issues for Disclosure.
6.4 In all cases, an order for Extended Disclosure must be reasonable and proportionate having regard to the overriding objective including the following factors—
(1) the nature and complexity of the issues in the proceedings;
(2) the importance of the case, including any non-monetary relief sought;
(3) the likelihood of documents existing that will have probative value in supporting or undermining a party’s claim or defence;
(4) the number of documents involved;
(5) the ease and expense of searching for and retrieval of any particular document (taking into account any limitations on the information available and on the likely accuracy of any costs estimates);
(6) the financial position of each party; and
(7) the need to ensure the case is dealt with expeditiously, fairly and at a proportionate cost.
6.5 A request for search-based Extended Disclosure (ie Models C, D and/or E) must specify which of the Disclosure Models listed in paragraph 8 below is proposed for each Issue for Disclosure defined in paragraph 7 below. It is for the party requesting Extended Disclosure to show that what is sought is appropriate, reasonable and proportionate (as defined in paragraph 6.4).
6.6 The objective of relating Disclosure Models to Issues for Disclosure is to limit the searches required and the volume of documents to be disclosed. Issues for Disclosure may be grouped. Disclosure Models should not be used in a way that increases cost through undue complexity.
6.7 It is important that the parties consider what types of documents and sources of documents there are or may be, including what documents another party is likely to have, in order that throughout a realistic approach may be taken to disclosure.
Court control over disclosure
6.8 The court will determine whether to order Extended Disclosure at the first case management conference or, if directed by the court, at another hearing convened for that purpose or without a hearing.
6.9 The court may determine any point at issue between the parties about disclosure including the application or effect of any provision in this Practice Direction or an order made by the court and about the scope of searches, the manner in which searches are to be carried out and the use of technology. The parties may, at any time, apply to the court to seek the determination of an issue concerning disclosure by issuing an application notice.
6.10 The court may also provide disclosure guidance in accordance with paragraph 11.
6.11 Upon the application of the parties/a party, or on its own motion, the court may vary any period of time for a party/the parties to complete a step in disclosure. If the variation is agreed between the parties and will not affect the date set for the Case Management Conference or trial (as appropriate), court approval is not required.
7. Identifying the Issues for Disclosure
7.1 Within 28 days of the final statement of case each party should state, in writing, whether or not it is likely to request search-based Extended Disclosure to include one or more of Models C, D or E (see paragraph 8 below) on one or more Issues for Disclosure in the case. At this point it should not particularise the Model(s) or the issue(s) in the case.
7.2 Where one or more of the parties has indicated it is likely to request search-based Extended Disclosure (i.e. Models C, D and/or E), the claimant must within 42 days of the final statement of case prepare and serve on the other parties a draft List of Issues for Disclosure unless an agreed list of issues for trial already exists and the parties agree that it is suitable (with or without adaptation) to be used for disclosure. The draft List of Issues for Disclosure should be set out in Section 1A of the Disclosure Review Document.
7.3 At the same time as serving a draft List of Issues for Disclosure, the claimant shall identify for each Issue for Disclosure which Model of Extended Disclosure it proposes for each party. If the claimant proposes Model C Disclosure for any Issue for Disclosure it should indicate, using Section 1B of the Disclosure Review Document, how the particular documents or narrow class of documents it proposes should be defined for that purpose (see paragraph 8 below).
7.4 If the claimant fails to prepare and serve a List of Issues for Disclosure within 42 days of the final statement of case any defendant may prepare and serve its own draft List of Issues for Disclosure on the other parties together with its proposed Models including any Model C requests.
7.5 A List of Issues for Disclosure is not required if the parties are agreed that Extended Disclosure is to be confined to Models A and B.
7.6 The List of Issues for Disclosure should be as short and concise as possible. “Issues for Disclosure” means for the purposes of disclosure only those key issues in dispute, which the parties consider will need to be determined by the court with some reference to contemporaneous documents in order for there to be a fair resolution of the proceedings. It does not extend to every issue which is disputed in the statements of case by denial or non-admission. For the purposes of producing a List of Issues for Disclosure the parties should consider what matters are common ground but should only include the key issues in dispute in the list.
7.7 When drafting Issues for Disclosure the parties should have regard to the primary functions of those Issues namely (i) to help the parties to consider, and the court to determine, whether Extended Disclosure is required and, if so, which Model or Models should be used; (ii) to assist the parties in identifying documents and categories of documents that are likely to exist and require to be disclosed; (iii) to assist those carrying out the disclosure process to do so in a practical and proportionate way including, in the case of search-based disclosure, to help define and guide the searches; (iv) to assist with the process of reviewing documents produced by searches; and (v) to avoid the production of documents that are not relevant to the issues in the proceedings.
7.8 The claimant should seek to ensure that the draft List of Issues for Disclosure provides a fair and balanced summary of the key areas of dispute identified by the parties’ statements of case and in respect of which it is likely that one or other of the parties will be seeking search-based Extended Disclosure.
7.9 A party served with a draft List of Issues for Disclosure and proposals on Models shall, as soon as practicable but in any event no later than 21 days from service, indicate using Section 1A (and, if applicable, 1B) of the Disclosure Review Document whether it agrees with the proposals (including any proposals as to how Model C Disclosure should be defined). If the party served with the proposals does not agree, or wishes to propose alternative or additional Issues for Disclosure, other Models and/or other Model C proposals, it should set out its alternative or additional proposals in Sections 1A and 1B of the Disclosure Review Document.
7.10 In advance of the first case management conference, the parties must discuss and seek to agree the draft List of Issues for Disclosure, the Models identified for each Issue for Disclosure, and the wording of any Model C proposals. They should consider whether any draft Issue for Disclosure can be removed.
7.11 Whilst reasonable and proportionate efforts are required to agree the List of Issues for Disclosure, if agreement cannot be reached after such efforts the List should be concluded by showing the areas of disagreement. The parties should consider seeking Disclosure Guidance from the court at an early stage as a means to help resolve the differences between them. One situation in which Disclosure Guidance should be considered is where one party believes the other is proposing a list of issues that is far too complex to serve as a List of Issues for Disclosure.
7.12 The List of Issues for Disclosure does not bind the parties at trial. The List of Issues for Disclosure need not contain / include a list of all the issues in the case and the issues in the case may develop or be refined as the case proceeds. The List of Issues for Disclosure may be revised or supplemented at any time prior to or following the case management conference, including as a result of statements of case or amended statements of case subsequently served or discussions between the parties in relation to the Disclosure Review Document.
7.13 If the parties are (subject to the court) agreed that there are preliminary issues suitable for determination before other issues in the case, or that the case should be divided into stages, the parties may apply to the court before any case management conference for an order for the trial of those issues or for trial in stages (and related directions), and they may agree in writing to limit the work towards disclosure required by this Practice Direction until that application has been heard.
7.14 In an appropriate case where the claimant is acting in person and a defendant is not the court may request the legal representatives of the defendant to lead on the preparation of the List of Issues for Disclosure.
7.15 The parties may agree a revised timetable for completion of the Disclosure Review Document (including the List of Issues for Disclosure, Models and Model C requests) where appropriate, provided always that any such revision to the timetable does not affect the date set for the Case Management Conference.
7.16 In a multi-party case, where the risk of undue complexity in Lists of Issues for Disclosure is heightened, while the provisions of this Practice Direction remain the default arrangement, an application may be made under paragraph 1.11 above to request that the Court order for a bespoke timetable and procedure to be set in order to meet the needs of the multi-party case.
8. The Extended Disclosure Models
8.1 Extended Disclosure may take the form of one or more of the Disclosure Models set out below.
8.2 There is no presumption that a party is entitled to search-based Extended Disclosure (Extended Disclosure Models C, D and/or E). No Model will apply without the approval of the court.
8.3 The court may order that Extended Disclosure be given using different Disclosure Models for different Issues for Disclosure in the case. It is important that there is moderation in the number of Models used and the way in which they are applied to the Issues for Disclosure so that the disclosure process that will follow, using the Models and the Issues for Disclosure, will be practical. In the interests of avoiding undue complexity the court will rarely require different Models for the same set or repository of documents. The court may also order that Extended Disclosure be given by only one party, or that different Models are to apply to each party’s Disclosure on a particular Issue for Disclosure. In some cases, it may be appropriate, practical and proportionate for different Models to be applied to different types of documents (e.g. one Model for physical documents and another Model for electronic documents).
Model A: Disclosure confined to known adverse documents
The court may order that the only disclosure required in relation to some or all of the Issues for Disclosure is of known adverse documents in accordance with the (continuing) duty under paragraph 3.1(2) above.
Model B: Limited Disclosure
(1) The court may order the parties to disclose (where and to the extent that they have not already done so by way of Initial Disclosure, and without limit as to quantity)—
(a) the key documents on which they have relied (expressly or otherwise) in support of the claims or defences advanced in their statement(s) of case; and
(b) the key documents that are necessary to enable the other parties to understand the claim or defence they have to meet;
and in addition to disclose known adverse documents in accordance with their (continuing) duty under paragraph 3.1(2) above.
(2) A party giving Model B Disclosure is under no obligation to undertake a search for documents beyond any search already conducted for the purposes of obtaining advice on its claim or defence or preparing its statement(s) of case. Where it does undertake a search however then the (continuing) duty under paragraph 3.1(2) will apply.
Model C: Disclosure of particular documents or narrow classes of documents
(1) The court may order a party to give disclosure of particular documents or narrow classes of documents relating to a particular Issue for Disclosure, by reference to requests set out in or to be set out in Section 1B of the Disclosure Review Document or otherwise defined by the court.
(2) If the parties cannot agree that disclosure should be given, or the disclosure to be given, pursuant to a request, then the requesting party must raise the request at the case management conference. The court will determine whether the request is reasonable and proportionate and may either order the disclosing party to search for the documents requested, refuse the request, or order the disclosing party to search for a narrower class of documents than that requested. Any appropriate limits to the scope of the searches to be undertaken will be determined by the court using the information provided in the Disclosure Review Document. A party may address Model C requests not only to the other party or parties, but also propose that Model C be used in respect of documents which it may propose searching for and disclosing.
(3) For the avoidance of doubt, a party giving Model C Disclosure must still comply with the duty under paragraph 3.1(2) above to disclose known adverse documents; these will include any arising from the search directed by the court.
Model D: Narrow search-based disclosure, with or without Narrative Documents
(1) Under Model D, a party shall disclose documents which are likely to support or adversely affect its claim or defence or that of another party in relation to one or more of the Issues for Disclosure.
(2) Each party is required to undertake a reasonable and proportionate search in relation to the Issues for Disclosure for which Model D disclosure has been ordered. Any appropriate limits to the scope of the searches to be undertaken will be determined by the court using the information provided in the Disclosure Review Document.
(3) The court may order the parties to include or exclude Narrative Documents. In the absence of an order, the parties are encouraged to take reasonable steps to exclude Narrative Documents where it is reasonable and proportionate to do so with a view to reducing the overall volume and the cost of any subsequent review by the party receiving the disclosure.
(4) For the avoidance of doubt, a party giving Model D Disclosure must still comply with the duty under paragraph 3.1(2) above to disclose known adverse documents; these will include any arising from the search directed by the court.
Model E: Wide search-based disclosure
(1) Under Model E, a party shall disclose documents which are likely to support or adversely affect its claim or defence or that of another party in relation to one or more of the Issues for Disclosure or which may lead to a train of inquiry which may then result in the identification of other documents for disclosure (because those other documents are likely to support or adversely affect the party’s own claim or defence or that of another party in relation to one or more of the Issues for Disclosure).
(2) Model E is only to be ordered in an exceptional case.
(3) Each party is required to undertake a reasonable and proportionate search in relation to the Issues for Disclosure for which Model E Disclosure has been ordered. The scope of the search will be determined by the court using the information provided in the Disclosure Review Document and is likely to be broader than that ordered for Model D Disclosure.
(4) Narrative Documents must also be searched for and disclosed, unless the court otherwise orders.
(5) For the avoidance of doubt, a party giving Model E Disclosure must still comply with the duty under paragraph 3.1(2) above to disclose known adverse documents; these will include any arising from the search directed by the court.
9. Other provisions concerning Disclosure Models
9.1 Where an order for Model B, C, D or E Extended Disclosure is made on one or more Issues for Disclosure, any known adverse documents to be disclosed in compliance with the duty under paragraph 3.1(2) above and not already disclosed must be disclosed at the time ordered for that Extended Disclosure.
9.2 In a case where no order for Extended Disclosure is made in respect of a party on any Issue for Disclosure, that party must still disclose all known adverse documents within 60 days of the first case management conference and provide a Disclosure Certificate certifying that this has been done.
9.3 The provisions of paragraph 8 and this paragraph 9 do not affect the fact that the duty under paragraph 3.1(2) above is a continuing duty as provided by paragraph 3.3 above: if adverse documents in the control of a party come to its knowledge at a later date they must (unless privileged) be disclosed without delay.
9.4 The court may make an order for Extended Disclosure in stages.
9.5 When it is necessary to decide any question of what is reasonable and proportionate under a particular Disclosure Model, the court will consider all the circumstances of the case including the factors set out in paragraph 6.4 above and the overriding objective.
9.6 Where the Disclosure Model requires searches to be undertaken, the parties must discuss and seek to agree, and the court may give directions, on the following matters with a view to reducing the burden and cost of the disclosure exercise—
(1) that the scope of the searches which the disclosing parties are required to undertake be limited to—
(a) particular date ranges and custodians of documents;
(b) particular classes of documents and/or file types;
(c) specific document repositories and/or geographical locations;
(d) specific computer systems or electronic storage devices;
(e) documents responsive to specific keyword searches, or other automated searches (by reference, if appropriate, to individual custodians, creators, repositories, file types and/or date ranges, concepts);
(2) if Narrative Documents are to be excluded, how that is to be achieved in a reasonable and proportionate way;
(3) the use of—
(a) software or analytical tools, including technology assisted review software and techniques;
(b) coding strategies, including to reduce duplication.
(4) prioritisation and workflows.
9.7 In making an order for Extended Disclosure, the court may include any provision that is appropriate including provision for all or any of the following—
(1) requiring the use of specified software or analytical tools;
(2) identifying the methods to be used to identify duplicate or near-duplicate documents and remove or reduce such documents;
(3) requiring the use of data sampling;
(4) specifying the format in which documents are to be disclosed;
(5) identifying the methods that the court regards as sufficient to be used to identify privileged documents and other non-disclosable documents;
(6) the use of a staged approach to the disclosure of electronic documents;
(7) excluding certain classes of document from the disclosure ordered.
9.8 In considering Extended Disclosure as well as when complying with an order for Extended Disclosure the parties should have regard to the guidance set out in Section 3 of the Disclosure Review Document.
9.9 In an appropriate case, the court may order that the question of which party bears the costs of disclosure is to be given separate consideration at a later stage rather than the costs being treated automatically as costs in the case;
9.10 For the avoidance of doubt, Extended Disclosure does not require any document to be translated.
10. Completion of the Disclosure Review Document
10.1 The Disclosure Review Document is the document by which the parties must identify, discuss and seek to agree the scope of any Extended Disclosure sought of Model C, D or E, and provide that information in due course to the court.
10.2 The Disclosure Review Document may be modified (shortened or lengthened) as required in order that key information is exchanged and in due course provided to the court in an efficient, convenient and helpful format. This may include revising some of the questions asked in Section 2 of the DRD or adding others relevant to the particular disclosure exercise to be undertaken. In cases where there is likely to be limited disclosure or the identification and retrieval of documents is straightforward, not every section of the Disclosure Review Document will need to be completed. For such cases, the parties should consider whether it would be more appropriate to use the Less Complex Claims regime.
10.3 The parties’ obligation to complete, seek to agree and update the Disclosure Review Document is ongoing. If a party fails to co-operate and constructively to engage in this process the other party or parties may apply to the court for an appropriate order at or separately from the case management conference, and the court may make any appropriate order including the dismissal of any application for Extended Disclosure and/or the adjournment of the case management conference with an adverse order for costs.
10.4 Where Model C is proposed for any Issue(s) for Disclosure, these should be limited in number, focused in scope and concise so that the responding party may be clear as to the particular document(s) or narrow classes of document relating to a particular Issue for Disclosure for which it is being asked to undertake searches. Broad and wide-ranging formulations such as “any or all documents relating to...” should not be used. Model C requests should not be used in a tactical or oppressive way.
10.5 Having sought to agree the List of Issues for Disclosure, proposals on Model(s) for Extended Disclosure and the wording of any Model C requests, the parties should prepare and exchange drafts of Section 2 of the Disclosure Review Document (including costs estimates of different proposals, and where possible estimates of likely amount of documents involved) as soon as reasonably practicable and in any event not later than 14 days before the case management conference. Section 2 of the Disclosure Review Document should be completed only if any party is seeking an order for search-based Extended Disclosure (i.e. Models C, D and/or E).
10.6 The parties must seek to resolve any disputes over the scope of any Extended Disclosure sought in advance of the first case management conference. Any disputes which have not been resolved will normally be decided by the court at the first case management conference.
10.7 A finalised single joint Disclosure Review Document should be filed by the claimant not later than 5 days before the case management conference. Related correspondence and earlier drafts should not ordinarily be filed.
10.8 The parties must each file and serve a signed Certificate of Compliance substantially in the form set out in Appendix 3 not less than two days before the case management conference. A Certificate of Compliance is not required for cases where a Disclosure Review Document has been dispensed with under paragraph 10.5.
10.9 In an appropriate case where the claimant is acting in person and a defendant is not the court may request the legal representatives of the defendant to lead on the preparation and filing of the Disclosure Review Document.
11. Disclosure Guidance
11.1 A party may seek guidance from the court on any point concerning the operation of this Practice Direction in a particular case, where—
(1) there is a significant difference of approach between the parties;
(2) the parties require guidance from the court in order to address the point of difference between them without a formal determination; and
(3) the point is suitable for guidance to be provided either on the papers or, other than in substantial claims, within the maximum hearing length and maximum time for pre-reading provided at paragraph 11.2.
11.2 Disclosure Guidance may be obtained by issuing an application notice. The application notice should contain a statement identifying the point upon which guidance is sought and confirming the matters at (1) to (3) of paragraph 11.1 above. Evidence will not normally be required for Disclosure Guidance . If a hearing is requested, or is fixed by the court, the application will ordinarily have a maximum hearing length of 60 minutes and a maximum time of 30 minutes for pre-reading. However, where suitable the Court may decide to deal with the application on the documents and without an oral hearing. The Court may also direct a longer maximum hearing length or time for pre-reading, if it is required.
11.3 At a hearing the court will generally expect a legal representative with direct responsibility for the conduct of disclosure to be the person who participates on behalf of each party in the discussion.
11.4 The guidance given by the court will be recorded in a short note, to be approved by the court. Whilst the primary function of Disclosure Guidance is to provide guidance (see paragraph 11.1(2) above), for the avoidance of doubt the court may, where it considers it is appropriate to do so, make an order.
11.5 Unless otherwise ordered, the costs of an application for Disclosure Guidance are costs in the case and no order from the court to that effect is required.
11.6 The provisions in this paragraph do not affect or limit the court’s jurisdiction to determine any point about the scope of disclosure, the application of any provision in this Practice Direction or the effect of any order made by the court. A party may apply to the court seeking the determination of an issue about disclosure at any time (see paragraphs 6.8 to 6.11 above).
12. Complying with an order for Extended Disclosure
12.1 An order for Extended Disclosure is complied with by undertaking the following steps—
(1) service of a Disclosure Certificate substantially in the form set out in Appendix 4 signed by the party giving disclosure, to include a statement supported by a statement of truth signed by the party or an appropriate person at the party that all known adverse documents have been disclosed;
(2) service of an Extended Disclosure List of Documents (unless dispensed with, by agreement or order); and
(3) production of the documents which are disclosed over which no claim is made to withhold production or (if the party cannot produce a particular document) compliance with paragraph 12.3.
12.2 The order for Extended Disclosure will not have been complied with until each step specified in paragraph 12.1 has taken place.
12.3 If a party cannot produce a particular document (because the document no longer exists, the party no longer has it in its possession or for any other reason) the disclosing party is required to describe each such document with reasonable precision and explain with reasonable precision the circumstances in which, and the date when, the document ceased to exist or left its possession or the other reason for non-production. If it is not possible to identify individual documents, the class of documents must be described with reasonable precision.
12.4 In the case of a company, firm, association or other organisation, or where the Disclosure Certificate is signed by a party on behalf of other parties, the certificate must—
(1) identify the person signing the Disclosure Certificate; and
(2) explain why she or he is considered to be an appropriate person to sign it.
12.5 A party may not without the permission of the court or agreement of the parties rely on any document in its control that it has not disclosed at the time required for Extended Disclosure (or within 60 days after the first case management conference in a case where there will be no Extended Disclosure). For the avoidance of doubt the party and its legal representatives remain under the duties under paragraph 3.1 (the Disclosure Duties) and 3.2 above.
12.6 A Disclosure Certificate may be signed by the legal representative for the party concerned, provided always that the legal representative has explained the significance of the Disclosure Certificate to his or her client(s) and has been given written authority to sign the Disclosure Certificate on the client(s) behalf. In such cases, the party will be deemed to have agreed to and be bound by the certifications given by its legal representative.
13. Production of documents
13.1 Save where otherwise agreed or ordered, a party shall produce—
(1) disclosable electronic documents to the other parties by providing electronic copies in the documents’ native format, in a manner which preserves metadata; and
(2) (save as provided by paragraph 5.5 above in the case of Initial Disclosure) disclosable hard copy documents by providing scanned versions or photocopied hard copies.
13.2 Electronic documents should generally be provided in the form which allows the party receiving the documents the same ability to access, search, review and display the documents (including metadata) as the party providing them.
13.3 A party should provide any available searchable OCR versions of electronic documents with the original, unless they have been redacted. If OCR versions are provided, they are provided on an “as is” basis, with no assurance to the other party that the OCR versions are complete or accurate.
13.4 A party should not disclose more than one copy of a document unless additional copies contain or bear modifications, obliterations or other markings or features which of themselves cause those additional copies to fall within a party’s Initial or Extended Disclosure obligations.
13.5 In multi-party cases, the parties should discuss and seek to agree whether it is appropriate for all of the disclosing party’s documents to be given to all of the other parties or to some only. In the event of disagreement, the parties may seek Disclosure Guidance from the Court pursuant to paragraph 11 or, if appropriate, apply by application notice to the court for directions.
14. Right to withhold production of documents (other than public interest immunity)
14.1 A person who wishes to claim a right or duty (other than on the basis of public interest immunity) to withhold disclosure or production of a document, or part of a document, or a class of documents which would otherwise fall within its obligations of Initial Disclosure or Extended Disclosure may exercise that right or duty without making an application to the court subject to—
(1) describing the document, part of a document or class of document; and
(2) explaining, in the Disclosure Certificate, the grounds upon which the right or duty is being exercised.
A claim to privilege may (unless the court otherwise orders) be made in a form that treats privileged documents as a class, provided always that paragraph 3.2(5) is complied with.
14.2 A party who wishes to challenge the exercise of a right or duty to withhold disclosure or production must apply to the court by application notice supported where necessary by a witness statement.
14.3 The court may inspect the document or samples of the class of documents if that is necessary to determine whether the claimed right or duty exists or the scope of that right or duty.
15. Confidentiality
If there are material concerns over the confidentiality of a document (whether the confidentiality benefits a party to the proceedings or a third party), the court may order disclosure to a limited class of persons, upon such terms and subject to such conditions as it thinks fit. The court may make further orders upon the request of a party, or on its own initiative, varying the class of persons, or varying the terms and conditions previously ordered, or removing any limitation on disclosure.
16. Redaction
16.1 A party may redact a part or parts of a document on the ground that the redacted data comprises data that is—
(1) irrelevant to any issue in the proceedings, and confidential; or
(2) privileged.
16.2 Any redaction must be accompanied by an explanation of the basis on which it has been undertaken and confirmation, where a legal representative has conduct of litigation for the redacting party, that the redaction has been reviewed by a legal representative with control of the disclosure process. A party wishing to challenge the redaction of data must apply to the court by application notice supported where necessary by a witness statement.
17. Failure adequately to comply with an order for Extended Disclosure
17.1 Where there has been or may have been a failure adequately to comply with an order for Extended Disclosure the court may make such further orders as may be appropriate, including an order requiring a party to—
(1) serve a further, or revised, Disclosure Certificate;
(2) undertake further steps, including further or more extended searches, to ensure compliance with an order for Extended Disclosure;
(3) provide a further or improved Extended Disclosure List of Documents;
(4) produce documents; or
(5) make a witness statement explaining any matter relating to disclosure.
17.2 The party applying for an order under paragraph 17.1 must satisfy the court that making an order is reasonable and proportionate (as defined in paragraph 6.4).
17.3 An application for any order under paragraph 17.1 should normally be supported by a witness statement.
18. Varying an order for Extended Disclosure; making an additional order for disclosure of specific documents
18.1 The court may at any stage make an order that varies an order for Extended Disclosure. This includes making an additional order for disclosure of specific documents or narrow classes of documents relating to a particular Issue for Disclosure.
18.2 The party applying for an order under paragraph 18.1 must satisfy the court that varying the original order for Extended Disclosure is necessary for the just disposal of the proceedings and is reasonable and proportionate (as defined in paragraph 6.4).
18.3 An application for an order under paragraph 18.1 must be supported by a witness statement explaining the circumstances in which the original order for Extended Disclosure was made and why it is considered that order should be varied.
18.4 The court’s powers under this paragraph include, but are not limited to, making an order for disclosure in the form of Models A to E and requiring a party to make a witness statement explaining any matter relating to disclosure.
19. Restriction on use of a privileged document which has been inadvertently produced
19.1 Where a party inadvertently produces a privileged document, the party who has received the document may use it or its contents only with the permission of the court.
19.2 Where a party is told, or has reason to suspect, that a document has been produced to it inadvertently, that party shall not read the document and shall promptly notify the party who produced it to him. If that party confirms that the document was produced inadvertently, the receiving party shall, unless on application the court otherwise orders, either return it or destroy it, as directed by the producing party, without reading it.
20. Sanctions
20.1 Throughout disclosure the court retains its full powers of case management and the full range of sanctions available to it.
20.2 If a party has failed to comply with its obligations under this Practice Direction including by—
(1) failing to comply with any procedural step required to be taken;
(2) failing to discharge its Disclosure Duties; or
(3) failing to cooperate with the other parties, including in the process of seeking to complete, agree and update the Disclosure Review Document,
the court may adjourn any hearing, make an adverse order for costs or order that any further disclosure by a party be conditional on any matter the court shall specify. This provision does not limit the court’s power to deal with the failure as a contempt of court in an appropriate case.
21. Documents referred to in evidence
21.1 A party may at any time request a copy of a document which has not already been provided by way of disclosure but is mentioned in—
(1) a statement of case;
(2) a witness statement;
(3) a witness summary;
(4) an affidavit; or
(5) an expert’s report.
21.2 Copies of documents mentioned in a statement of case, witness evidence or an expert’s report and requested in writing should be provided by agreement unless the request is unreasonable or a right to withhold production is claimed.
21.3 A document is mentioned where it is referred to, cited in whole or in part or there is a direct allusion to it.
21.4 Subject to rule 35.10(4), the court may make an order requiring a document to be produced if it is satisfied such an order is reasonable and proportionate (as defined in paragraph 6.4).
22. Cost
22.1 The parties are required to provide an estimate of what they consider to be the likely costs of giving the disclosure proposed by them in the Disclosure Review Document, and the likely volume of documents involved, in order that a court may consider whether such proposals on disclosure are reasonable and proportionate (as defined in paragraph 6.4). These estimated costs may be used by the court in the cost budgeting process.
22.2 In cases where the cost budgeting scheme applies, if it is not practical to complete the disclosure section of Form H in relation to disclosure prior to the court making an order in relation to disclosure at the case management conference, the parties may notify the court that they have agreed to postpone completion of that section of Form H until after the case management conference. If they have agreed to postpone they must complete the disclosure section within such period as is ordered by the court after an order for disclosure has been made at the case management conference. Where possible the court will then consider (and if appropriate, approve) that part of the cost budget without an oral hearing.
23. False Disclosure Certificates
23.1 Proceedings for contempt of court may be brought against a person who signs, or causes to be signed by another person, a false Disclosure Certificate without an honest belief in its truth.
SECTION II (text of rules from Part 31)
Disclosure before proceedings start
31.16.—(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started.
(2) The application must be supported by evidence.
(3) The court may make an order under this rule only where—
(a) the respondent is likely to be a party to subsequent proceedings;
(b) the applicant is also likely to be a party to those proceedings;
(c) if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and
(d) disclosure before proceedings have started is desirable in order to—
(i) dispose fairly of the anticipated proceedings;
(ii) assist the dispute to be resolved without proceedings; or
(iii) save costs.
(4) An order under this rule must—
(a) specify the documents or the classes of documents which the respondent must disclose; and
(b) require him, when making disclosure, to specify any of those documents—
(i) which are no longer in his control; or
(ii) in respect of which he claims a right or duty to withhold inspection.
(5) Such an order may—
(a) require the respondent to indicate what has happened to any documents which are no longer in his control; and
(b) specify the time and place for disclosure and inspection.
Orders for disclosure against a person not a party
31.17.—(1) This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings.
(2) The application must be supported by evidence.
(3) The court may make an order under this rule only where—
(a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and
(b) disclosure is necessary in order to dispose fairly of the proceedings or to save costs.
(4) An order under this rule must—
(a) specify the documents or the classes of documents which the respondent must disclose; and
(b) require the respondent, when making disclosure, to specify any of those documents—
(i) which are no longer in his control; or
(ii) in respect of which he claims a right or duty to withhold inspection.
(5) Such an order may—
(a) require the respondent to indicate what has happened to any documents which are no longer in his control; and
(b) specify the time and place for disclosure and inspection.
Rules not to limit other powers of the court to order disclosure
31.18.—Rules 31.16 and 31.17 do not limit any other power which the court may have to order—
(a) disclosure before proceedings have started; and
(b) disclosure against a person who is not a party to proceedings.
Claim to withhold inspection or disclosure of a document (public interest immunity)
31.19.—(1) A person may apply, without notice, for an order permitting him to withhold disclosure of a document on the ground that disclosure would damage the public interest.
(2) Unless the court orders otherwise, an order of the court under paragraph (1)—
(a) must not be served on any other person; and
(b) must not be open to inspection by any person.
…
(8) This Part does not affect any rule of law which permits or requires a document to be withheld from disclosure or inspection on the ground that its disclosure or inspection would damage the public interest.
Subsequent use of disclosed documents and completed Electronic Documents Questionnaires
31.22.—(1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where—
(a) the document has been read to or by the court, or referred to, at a hearing which has been held in public;
(b) the court gives permission; or(c) the party who disclosed the document and the person to whom the document belongs agree.
(2) The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public.
(3) An application for such an order may be made—
(a) by a party; or
(b) by any person to whom the document belongs.
(4) For the purpose of this rule, an Electronic Documents Questionnaire which has been completed and served by another party pursuant
Appendix 1: Definitions for the purpose of Section I
1.1 “Control” in the context of disclosure includes documents: (a) which are or were in a party’s physical possession; (b) in respect of which a party has or has had a right to possession; or (c) in respect of which a party has or has had a right to inspect or take copies.
1.2 “Copy” means a facsimile of a document either in the same format as the document being copied or in a similar format that is readable by the recipient, and in all cases having identical content.
1.3 “Data Sampling” means the process of checking data by identifying and checking representative individual documents.
1.4 “Disclose” comprises a party stating that a document that is or was in its control has been identified or forms part of an identified class of documents and either producing a copy, or stating why a copy will not be produced.
1.5 “Disclosure Certificate” means a certificate that is substantially in the form set out in Appendix 3 and signed in accordance with the Practice Direction.
1.6 “Disclosure Review Document” means as the case may be the Disclosure Review Document at Appendix 2, or in the case of Less Complex Claims the Disclosure Review Document at Appendix 6, which is to be completed by the parties pursuant to the Practice Direction, in respect of any application for Extended Disclosure.
1.7 “Electronic Image” means an electronic representation of a paper document.
1.8 “Keyword Search” means a software-aided search for words across the text of an electronic document.
1.9 “Less Complex Claim” means a claim which the parties have agreed or the Court has ordered is one that meets the criteria for the Less Complex Claims regime as set out in Appendix 5 of this Practice Direction.
1.10 “List of Documents” means a list of documents in chronological order (or if appropriate classes of documents in chronological order), identifying each document with a clear description including the date and, where applicable any author, sender or recipient. Where appropriate the list must distinguish between documents which exist and those that no longer exist.
1.11 “Metadata” means data about data. In the case of an electronic document, metadata is typically embedded information about the document which is not readily accessible once the native electronic document has been converted into an electronic image or paper document. It may include (for example) the date and time of creation or modification of a word-processing file, or the author and the date and time of sending an e-mail. Metadata may be created automatically by a computer system or manually by a user.
1.12 “Narrative Document” means a document which is relevant only to the background or context of material facts or events, and not directly to the Issues for Disclosure; for the avoidance of doubt an adverse document (as defined at paragraph 2.6) is not to be treated as a Narrative Document
1.13 “Native Electronic Document” or “Native Format” means an electronic document stored in the original form in which it was created by a computer software program;
1.14 “Optical Character Recognition” (OCR) means the computer-facilitated recognition of printed or written text characters in an electronic image in which the text-based contents cannot be searched electronically.
1.15 “Technology Assisted Review” includes all forms of document review that may be undertaken or assisted by the use of technology, including but not limited to predictive coding and computer assisted review.
Appendix 2: Disclosure Review Document
Disclosure Review Document (PDF)
Appendix 3: Certificate of Compliance
Appendix 3 to Practice Direction 57AD
Certificate of Compliance (represented parties)
By submitting the disclosure review document to the court, I hereby confirm that I have discussed, explained and advised my client on the following:
- The alternative orders that can be made by the court in relation to disclosure, including the question of whether or not an order for Extended Disclosure should be sought at all and, if so, what the Issues for Disclosure should be and which of the Disclosure Models are appropriate to achieve a fair determination of those Issues for Disclosure;
- The duties that I and my client are under in relation to disclosure pursuant to paragraph 3 of Practice Direction 57AD;
- The overriding objective in all cases to seek to ensure that the burden and costs of disclosure are reasonable and proportionate in the context of the proceedings.
- The likely costs that will be incurred in respect of the disclosure orders sought.
I further confirm that the information provided in this disclosure review document is, to the best of my knowledge and belief, true and accurate.
Name: ……………………………………..
Position: ……………………………………..
[Claimant / Defendant]
Certificate of Compliance (unrepresented parties)
By submitting the disclosure review document to the court, I hereby confirm as follows:
- I understand the duties that I am under in relation to disclosure pursuant to paragraph 3 of Practice Direction 57AD.
- I am aware of the overriding objective in all cases to seek to ensure that the burden and costs of disclosure are reasonable and proportionate in the context of the proceedings.
- The information provided in this DRD is, to the best of my knowledge and belief, true and accurate.
Name: ……………………………………..
Position: ……………………………………..
[Claimant / Defendant]
Appendix 4: Disclosure Certificate
Disclosure Certificate (PDF)
Appendix 5: Less complex claims
1. This appendix contains provisions for a simplified disclosure regime for Less Complex Claims. All the provisions of the main body of Practice Direction 57AD on disclosure in the Business and Property Courts apply to Less Complex Claims, including the provisions relating to Initial Disclosure in accordance with paragraph 5 of Practice Direction 57AD, unless they are expressly varied by this appendix or are required to be applied with appropriate changes as a consequence of its provisions.
2. Parties to a dispute should always consider whether a dispute or claim is suitable for the Shorter Trials Scheme rather than being treated as a Less Complex Claim.
Designating claims as Less Complex Claims
3. A Less Complex Claim is a claim which by virtue of its nature, value, complexity and the likely volume of Extended Disclosure may not benefit from the full procedure set out in the main body of Practice Direction 57AD. The value of a claim means a reasonable estimate, made in good faith, of the total financial value at risk in the claim taken with the value, so far as ascertainable, of any non-financial relief sought.
4. If the value of a claim is less than £1,000,000 then unless the other factors specified in paragraph 3 above indicate to the contrary, the claim should be treated as a Less Complex Claim. The fact that the value of a claim may exceed £1,000,000 does not, of itself, mean that the claim should not be treated as a Less Complex Claim if the other factors specified in paragraph 3 above indicate that it should be.
5. A claim may be treated as a Less Complex Claim for the purposes of Extended Disclosure either by an agreement made between all the parties to the claim or by order of the court.
6. An agreement to treat a claim as a Less Complex Claim may be made between parties before or after a claim is issued and these provisions may be used in respect of existing as well as new proceedings. If an agreement is reached before a claim is issued it takes effect upon service of the claim on the parties to the agreement. An agreement between the parties may not vary the provisions for Extended Disclosure contained in this appendix, unless approved by court order.
7. If there is no agreement between the parties before the claim is issued, the claimant may by letter or in its particulars of claim notify the defendant that it wishes the claim to be treated as a Less Complex Claim. If no such notification is given by the claimant, a defendant may by letter or in its defence notify the claimant that it wishes to treat the claim as a Less Complex Claim.
8. A request to treat a claim as a Less Complex Claim must include brief reasons for believing that the claim meets the criteria specified in paragraph 3 of this appendix.
9. If the parties acting reasonably and in good faith do not agree to the claim being treated as a Less Complex Claim, the provisions of this appendix shall not apply unless the court makes an order to the contrary. The court may make such an order of its own volition or upon determining an application made by application notice. The application notice must contain or be accompanied by a fair summary of the parties’ competing contentions in relation to the application of the criteria specified in paragraph 3 of this appendix and copies of any relevant correspondence. Where possible, the court will make a determination in writing without a hearing.
Simplified procedure for Less Complex Claims
10. Where the parties have agreed that this appendix shall apply to the claim, or the court has so ordered, the provisions in the main body of Practice Direction 57AD shall be varied and shall operate as follows:
10.1 Extended Disclosure will be given using only Models A, B or D. Models C and E are not available for use in a Less Complex Claim.
10.2 The parties shall complete a disclosure review document in the form set out in Appendix 6 in accordance with the timetable contained within paragraphs 7 and 10 of Practice Direction 57AD and Appendix 7.
10.3 As provided for in paragraphs 7.1 and 10.1 of Practice Direction 57AD, if none of the parties are requesting search-based Extended Disclosure (ie Model D), but instead are only proposing Models A and/or B, then the provisions in Appendices 5, 6 and 7 shall not apply (unless the court orders to the contrary) and there shall be no requirement to identify the Issues for Disclosure or to complete a Disclosure Review Document, although the parties may agree to do so if they consider this will assist.
10.4 “Issues for Disclosure” has the same meaning as in paragraph 7.6 of Practice Direction 57AD. However, the definition is to be applied with the following additional guidance. Issues for Disclosure in a Less Complex Claim must be brief and be drafted at a high level of abstraction. Only rarely should the number of Issues for Disclosure exceed five and they should not be defined by reference to sub-issues if that will materially increase the length and complexity of the List of Issues for Disclosure.
10.5 When drafting Issues for Disclosure the parties should have regard to the primary functions of those Issues namely (i) to help the parties to consider, and the court to determine, whether Extended Disclosure is required and, if so, which Model or Models should be used; (ii) to assist the parties in identifying documents and categories of documents that are likely to exist and require to be disclosed; (iii) to assist those carrying out the disclosure process to do so in a practical and proportionate way including, in the case of search-based disclosure, to help define and guide the searches; (iv) to assist with the process of reviewing documents produced by searches; and (v) to avoid the production of documents that are not relevant to the issues in the proceedings.
10.6 The parties may use issues for trial as a starting point for defining Issues for Disclosure but it is not the function of Issues for Disclosure to replace issues for trial.
10.7 The parties must discuss and seek to agree the draft List of issues for Disclosure in advance of the date fixed for the first case management conference.
10.8 The parties must at all times have regard to their duties under paragraph 3 (in particular the duty placed upon legal representatives under paragraph 3.2(3)) of Practice Direction 57AD and their duty to assist the court to further the overriding objective, in particular to deal with the claim at proportionate cost. The parties should recognise that there may be genuine differences of view about whether Extended Disclosure should be ordered and, if so, what order should be made. If the parties are unable to agree the terms of an order for Extended Disclosure after reasonable engagement between them, brief submissions on the differences of approach should be made to the court at the case management conference and the court requested to make a determination.
11. For the avoidance of doubt, all provisions in the main body of Practice Direction 57AD regarding Known Adverse Documents apply to Less Complex Claims.
Appendix 6: Disclosure Review Document for Extended Disclosure in Less Complex Claims
Disclosure Review Document for Extended Disclosure in Less Complex Claims (PDF)
Appendix 7: Explanatory notes for the Disclosure Review Document for Extended Disclosure in Less Complex Claims
- The Less Complex Claims Disclosure Review Document (“LCCDRD”) is intended to:
- facilitate the exchange of information and provide a framework for discussions about the scope of Extended Disclosure;
- help the parties to agree a sensible and cost-effective approach to Extended Disclosure for Models A, B and/or D and identify areas of disagreement; and
- provide the court with parties’ proposals on Extended Disclosure for Models A, B and/or D, agreed or otherwise, so that the court can make appropriate case management decisions at the case management conference.
- These explanatory notes provide guidance. While not all of this guidance will be suitable for every claim, parties are nevertheless encouraged to follow this guidance unless there are good reasons not to do so.
- Unless stated otherwise below, the explanation and guidance in the Introduction of the Explanatory notes for Disclosure Review Document in Appendix 2 will apply for the completion of this form. If an order for Extended Disclosure is made by the court, the parties may also find it helpful to refer to the “Guidance on process after any order for Extended Disclosure has been made”, which is also in Appendix 2.
- References to paragraph numbers in the LCCDRD are to the paragraphs in Appendix 5 to Practice Direction 57AD
(the “Practice Direction”) unless stated otherwise and if there is a conflict between the LCCDRD and the Practice Direction, the Practice Direction will prevail. - The LCCDRD only needs to be completed where one or more of the parties are seeking Extended Disclosure in a Less Complex Claim. Parties do not need to complete a LCCDRD in Less Complex Claims where only Model A or B or no Extended Disclosure is sought by the parties. Where only Model B is requested, if the parties consider that it would nevertheless assist to identify and seek to agree upon a List of Issues for Disclosure or to complete any other sections of the LCCDRD, the parties may agree to do so.
- Unless agreed by the parties or ordered otherwise by the court, the claimant(s) will be responsible for ensuring that the form is completed and a single agreed version is filed with the court. If the claimant(s) is not seeking any search-based Disclosure (i.e. Model D disclosure) but one or more of the defendants is, the parties may agree that the defendant(s) shall be responsible for producing the LCCDRD and ensuring that the form is filed with the court. If there is more than one defendant, the parties should seek to agree which defendant shall bear this responsibility for the form.
- The parties must seek to agree and complete a List of Issues for Disclosure. Apart from the List of Issues for Disclosure in section 1, which must be completed in all cases where a LCCDRD is required under paragraph 10.1 of Appendix 5 to the Practice Direction, the parties are not required to complete all of the other sections of the form. They only should complete the sections which are applicable and relevant to the disclosure being requested in the particular case. This should as a minimum include the key information which the parties consider would assist the court in deciding what disclosure to order in the case.
- If the parties agree that any of the sections in the form are not applicable or relevant at all to the case, they should leave the response box next to those sections blank. If the parties cannot agree on whether a section is not applicable or is irrelevant, or if a section is only not applicable to a particular party or to a particular extent, they should include the wording “Not applicable” next to that section and a brief explanation, in order to assist the court in understanding the parties’ positions and in its review of the form.
- The parties are encouraged to confer (in person or by phone or video conference) and seek to agree the contents of the LCCDRD as it applies to their disclosure, in advance of the case management conference. Extensive correspondence in relation to the LCCDRD is unlikely to be efficient or helpful.
- If the parties cannot agree on any aspects of the LCCDRD (including the List of Issues for Disclosure) this should be recorded in summary form in section 6. The parties may also apply if appropriate for guidance from the court under paragraph 11 of the Practice Direction in order to seek to resolve any differences in advance of the case management conference.
- The fact that a party may propose initial searches (including keyword searches) at the stage of completing the LCCDRD should not be taken as acceptance by that party that those searches should ultimately be used (particularly if, on testing the keyword searches against the available data, it provides false positive results).
- If it is not practicable to provide a list of keywords for searches prior to the case management conference, the parties should engage and seek to co-operate following the case management conference to identify and agree the key words they propose using and thereafter test those key words against the data to determine whether or not they are appropriate.
Timetable for completing the LCCDRD
- The timetable for completion of the LCCDRD is set out in paragraphs 7 and 10 of the Practice Direction. The parties may agree a revised timetable for completion of the LCCDRD (including the List of Issues for Disclosure and Models) where appropriate, provided always that any such revision to the timetable does not affect the date set for the Case Management Conference. For convenience the timetable is summarised below as follows:
| Stage to be completed | Deadline |
Step 1 | Each party should state, in writing, whether or not it is likely to request Extended Disclosure Models A, B and/or D on one or more issues in the case. At this point it should not particularise the Model(s) or the issue(s) in the case. | Within 28 days of the closure of statements of case |
Step 2 | Where one or more of the parties has indicated it is likely to request search-based Extended Disclosure (i.e. Models D), unless the parties agree otherwise, the claimant must prepare and serve on the other parties a draft List of Issues for Disclosure unless the equivalent of such a list has already been agreed between the parties (for example, as part of a fuller list of issues). At the same time, the claimant shall identify for each Issue for Disclosure which Model of Extended Disclosure it proposes for each party. If the claimant fails to take these steps, the defendant may, but is not obliged to, prepare and serve its own draft List of Issues for Disclosure on the other parties. | Within 42 days of the closure of statements of case |
Step 3 | A party served with a draft List of Issues for Disclosure and proposals on Models shall indicate within section 1 of the LCCDRD whether it agrees with the proposed Issues for Disclosure and corresponding Model(s) for Extended Disclosure by completing the “Issue Agreed” and “Model Agreed” columns in section 1. If the party does not agree, or wishes to propose alternative or additional Issues for Disclosure or other Models, it should set out its alternative or additional proposals in section 1 of the LCCDRD and briefly explain and set out in section 6 of the LCCDRD the reasons why it disagrees with the Issues for Disclosure or Models proposals of the other party the reasons for the alternative proposals it is proposing. | As soon as practicable but in any event no later than 21 days after service of the draft List of Issues for Disclosure |
Step 4 | Having sought to agree the List of Issues for Disclosure and proposals on Model(s) for Extended Disclosure, the parties should prepare and exchange drafts of the LCCDRD (with all applicable sections of the document completed) in accordance with the guidance in Appendix 7. | As soon as reasonably practicable and in any event not later than 14 days before the case management conference |
Step 5 | The parties must seek to resolve any disputes over the scope of any Extended Disclosure sought or any other aspect of the completion of the LCCDRD. | In advance of the first case management conference |
Step 6 | Unless otherwise agreed by the parties or ordered by the court, the claimant(s) shall be responsible for ensuring that the form is completed and a single agreed version is filed with the court. Related correspondence and earlier drafts should not ordinarily be filed. | Not later than 5 days before the first case management conference |
Step 7 | The parties must independently file a signed Certificate of Compliance substantially in the form set out in Appendix 3 to the Practice Direction. | Not less than two days before the case management conference |