The Commercial Court partially granted an application for specific disclosure (apparently under CPR 31.12) in a case subject to the Disclosure Pilot Scheme (DPS) (PD 51U).
The DPS applies to existing and new proceedings in the Business and Property Courts (B&PCs) although it will not affect an order for disclosure made before 1 January 2019 (or before transfer of proceedings into a B&PC), unless that order is varied or set aside. PD 51U does not include specific transitional provisions.
CPR Part 31, PD 31A and 31B do not apply to proceedings under the DPS, subject to limited exceptions (of which Specific disclosure is not one).
Key points of interest in this decision include:
The judge’s willingness to consider an application for specific disclosure, apparently under CPR 31.12, although the case was subject to the DPS. He noted that the proceedings were subject to CPR 31 when standard disclosure was ordered, but “strictly” (both when he heard the application and when it was issued in March 2019) CPR 31 no longer applied. He referred to the claimants’ submission (undisputed by the respondents) that “under one or other of the [court’s] case management powers” it must be right that the court can, “in an appropriate case”, make a proper and targeted specific disclosure order, such as might have been given under Part 31, “if justified”. This seems to be an example of the courts’ pragmatic approach to transitional cases, in the absence of express transitional provisions.
The cautionary reminder that disclosing parties must be able to provide the court with a satisfactory explanation of how they selected documents for disclosure.
The need for a focused approach when seeking specific disclosure. Here, the applicant’s “sledgehammer cracking a nut” approach was one reason for not ordering the respondents to pay the costs of the application “in any event”.