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Disclosure Guidance under the Pilot Scheme in The Chancery Division

United KingdomScotland
17/03/2020
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In the McParland case which I have recently already commented upon, the judge tried to give guidance on what is and what is not disclosable under the Pilot Scheme. One point he made is that, just because an issue of contention arises from the exchange of pleadings, does not mean that documents which touch on it should be disclosed. It may be an issue of law: so no disclosure.

The judge went on to say that the issues for disclosure (not the same as the issues for trial) normally would be few. In this case there were three categories that set out the issues and the nature of the disclosure to be given. It would not be easy to condense those here (pars. 50 – 52 of the judgement for those who would like to read them: [2020] EWHC 3620 (Ch).

Lastly, the judge re-emphasised the need for a high level of co-operation between the parties. Again, in practice easier said than done, practitioners may think. But the starting point should be for the parties and their lawyers to do their best to achieve that high-level of co-operation on disclosure. Outlawed it is for parties to see the Disclosure Pilot “as a stick to beat their opponents.” If done, the judge warned, the “parties responsible will face serious adverse costs consequences”.

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