20 January 2022
Disputes Quick Read – 84 of 87 Insights
Disputes Quick Read: Court decisions on the Disclosure Pilot Scheme – the 2021 roundup
We look at key court decisions on the Disclosure Pilot Scheme (DPS) from the past year, as we look forward to another 12 months of the scheme's operation.
The DPS has been operating in the Business and Property Courts since 1 January 2019 and was due to end on 31 December 2021 but has been extended by the 133rd PD Update to 31 December 2022. The scheme was introduced in an attempt to create a more reasonable and proportionate disclosure process. It is governed by Practice Direction 51U (PD 51U). Case law and guidance on the operation of the scheme continues to emerge from the courts and from the Disclosure Working Group.
Below we summarise three cases dealing with control of documents held by third parties and pre-action disclosure.
Pipia v BGEO Group Ltd (formerly known as BGEO Group PLC) [2021] EWHC 86 (Comm)
The court gave further guidance on the meaning of control. The claimant sought disclosure of WhatsApp messages stored on mobile phones of two key individuals residing outside the jurisdiction, who were not parties to the case.
Cockerill J ordered additional Extended Disclosure of WhatsApp messages stored on the mobile phone of one witness, who had previously had a service contract with the defendant which authorised the defendant to access data held on his devices. The second witness had not had a contractual relationship with the defendant, and so his phone was not within the defendant's control. This distinction highlights the need for parties to scrutinise at an early stage employment/service contracts when considering if documents held by third parties are within their control.
The case also highlights the significance of WhatsApp in cases involving bad faith. The judge held that the immediacy of WhatsApp communications was such that they were likely to give the court 'an unguarded picture' of their author's actions and so the 'necessity' threshold, under PD 51U.18, was satisfied.
Various Airfinance Leasing Companies and another v Saudi Arabian Airlines Corporation [2021] EWHC 2904 (Comm)
Continuing with the theme of information held on personal devices, the High Court rejected the application that would have required the defendant to disclose documents held on mobile phones of two of its senior personnel.
The defendant argued that it lacked the necessary 'control' as it had no entitlement under Saudi Arabian law to 'possess, inspect, or control or obtain access' to the data held on the personnel's mobile phones. Having considered evidence on the law of Saudi Arabia, the court preferred the conclusion that the documents were not within the defendant's control. As the requirement of 'control' is the basis of both disclosure under CPR 31 and the DPS, the court further held that it could not require a party to exercise best endeavours to obtain or to request a third party to provide the documents.
This judgment is a further reminder for parties to consider early whether documents held by third parties could be deemed within either party's control, and clarifies the position where the relationship is governed by foreign law.
Willow Sports Ltd v SportsLocker24.com Ltd and another [2021] EWHC 2524 (Ch)
This judgment is of interest for the court's approach to pre-action disclosure under CPR 31.16 in a DPS context. The Deputy Master found that the court had jurisdiction to make an order but declined to do so. The Deputy Master held that the request for disclosure was too widely drawn and the court was not 'in a position to undertake the task of attempting to prune it'. Among other things, the Deputy Master noted that:
- given the distrust between the parties there was a real likelihood of the applicant being dissatisfied with any disclosure provided, risking satellite litigation about compliance with the order;
- the applicant sought disclosure to help it decide which cause of action it could pursue. This suggested the applicant was "fishing" to ascertain how to put its case.
The case is an illustration of the difficulties a party will face when seeking pre-action disclosure and a reminder that such applications should be confined to documents that are 'strictly necessary'.
Find out more
To discuss the issues raised in this article in more detail, please reach out to a member of our Disputes & Investigations team.
In this series
New SFO Director announces bold plans to tackle fraud
21 March 2024
by Multiple authors
First of its kind judicial guidance on the use of AI in the courts
14 December 2023
Witness familiarisation - does it affect the court's assessment of witness credibility?
13 December 2023
The use of AI in Trial Witness Statements post-PD 57AC
23 October 2023
by Multiple authors
CAT to hear the first application for a collective settlement approval order
17 October 2023
Failure to prevent fraud – a new offence?
14 August 2023
by Multiple authors
Supreme Court rules that APP fraud victims cannot rely on Quincecare Duty
4 August 2023
by Multiple authors
The Law Commission's Consultation Process on the Arbitration Act 1996 – taking stock
21 July 2023
What does the latest decision of the CAT in the Mastercard/Visa proceedings mean for class actions?
10 July 2023
Disputes Quick Read: ClientEarth refused permission to pursue directors of Shell
1 June 2023
by Multiple authors
Disputes Quick Read – developments in the fixed costs regime
3 May 2023
by James Bryden
Disputes Quick Read: Service by email – are the rules any clearer?
20 April 2023
by James Bryden
Disputes Quick Read - What do practitioners think about making alternative dispute resolution (ADR) compulsory?
8 March 2023
Disputes Quick Read: What are the litigation trends for 2023?
2 March 2023
Disputes Quick Read: further guidance on witness statement preparation rules
14 February 2023
Disputes Quick Read: A cautionary tale – settlement agreement (un)wittingly releases all claims for fraud
13 February 2023
Disputes Quick Read: Why the UK should join the Hague Judgments Convention 2019
8 February 2023
Disputes Quick Read: extensive information orders granted against crypto exchanges following hack
19 January 2023
Disputes Quick Read: A new approach to giving evidence? WhatsApp with that?
3 October 2022
Disputes Quick Read: Ethereum Merge - what legal issues arise?
22 September 2022
by Ben Jones, Emma Allen
Disputes Quick Read: New obligations on cryptobusinesses to report under the UK sanctions regime
9 August 2022
by Nick Maday
Disputes Quick Read: Disclosure - What information can be redacted?
25 July 2022
Disputes Quick Read: what claims exist when a smart contract is breached?
6 July 2022
by Emma Allen
Disputes Quick Read: New gateway for serving Norwich Pharmacal Orders and Bankers Trust orders out of the jurisdiction
Welcome news for those pursuing fraud claims in the English Courts
28 July 2022
Disputes Quick Read: Defining the duty - the limits of the responsibility assumed by professionals
27 July 2022
by Stuart Broom
Disputes Quick Read: Climate change litigation – successful challenge to government's Net Zero Strategy
29 July 2022
Disputes Quick Read: Judicial Review and Courts Act 2022 – now in force
17 June 2022
Disputes Quick Read: an important reminder of the duty to disclose electronic documents in native format
13 June 2022
Disputes Quick Read: ENRC prevails in claim against former solicitor
26 May 2022
Disputes Quick Read: Climate change litigation update – McGaughey v Universities Superannuation Scheme Limited
31 May 2022
by Multiple authors
Don't lose your keys: Bitcoin developers do not have a duty to assist owners in recovering lost cryptocurrency
4 April 2022
Disputes Quick Read: The new witness statement preparation rules – a year on
5 April 2022
Disputes Quick Read: ClientEarth v Shell – climate change litigation shifts focus to UK companies
31 March 2022
by Multiple authors
Disputes Quick Read: High Court rules that failure to provide adequate data security is not a positive act
21 September 2021
by Multiple authors
Disputes Quick Read: Key changes to the Disclosure Pilot Scheme
13 September 2021
Disputes Quick Read: Judicial Review and Courts Bill – unpacking the UK government's proposed amendments
6 September 2021
Disputes Quick Read: Will litigants be compelled to participate in alternative dispute resolution?
2 August 2021
Disputes Quick Read: Freezing injunctions – maximum custodial sentence imposed for breach
21 July 2021
Disputes Quick Read: The online future of civil justice – the end of the legal profession or the end of legal drudgery?
15 July 2021
Disputes Quick Read: Will the courts change forever post-COVID?
26 May 2021
Disputes Quick Read: One Blackfriars administrators cleared of misfeasance
5 May 2021
Disputes Quick Read: Not your prerogative – the Independent Review of Administrative Law reports its recommendations on judicial review
21 April 2021
Disputes Quick Read: Amendments to the Disclosure Pilot Scheme – a step in the right direction
31 March 2021
Disputes Quick Read: UK Supreme Court rules on the territorial extent of the SFO's powers
26 February 2021
Disputes Quick Read: No dropping anchor – parent company liability for environmental claims
24 February 2021
Disputes Quick Read: What lawyers need to know about new witness statement preparation rules
20 January 2021
Disputes Quick Read: Should you still choose the English courts to have jurisdiction in your international contracts after Brexit?
12 January 2021
by Tim Strong
Disputes Quick Read: Privilege lost in the EU post-Brexit (with exceptions)
23 November 2020
Disputes Quick Read: Law on interest applicable to US dollar awards reaffirmed
16 October 2020
Disputes Quick Read: Care required when drafting SPA claim notices
23 September 2020
by Multiple authors
Disputes Quick Read: Why the modernised LCIA rules are a welcome update
7 October 2020
by Nick Storrs
Disputes Quick Read: COVID-19 and supply chain disruption – key issues
9 April 2020
by Multiple authors
Disputes Quick Read: High Court orders parties to explore options for 5-week remote trial
15 April 2020
Disputes Quick Read: Tomlin Orders – ensuring the confidentiality of settlement terms
27 April 2020
by Multiple authors
Disputes Quick Read: UK's OFSI fines Standard Chartered Bank £20 million for sanctions breaches
21 April 2020
Disputes Quick Read: A different approach to witness evidence
11 March 2020
by James Bryden
Disputes Quick Read: Coronavirus - a growth in virtual courts?
17 March 2020
by Stuart Broom
Disputes Quick Read: Embracing remote hearings – the experience to date
26 March 2020
by Multiple authors
Disputes quick read: climate change activism by litigation
26 February 2020
Disputes Quick Read: Commercial Court's arbitral power shift
21 February 2020
Disputes Quick Read: Court stays evictions during COVID-19 – is this lawful?
2 June 2020
Disputes Quick Read: Will the civil justice system change forever post COVID-19?
16 June 2020
Disputes Quick Read: Retailers reign supreme in Visa and Mastercard proceedings
9 July 2020
Disputes Quick Read: The contra proferentem rule reconsidered?
21 July 2020
Disputes Quick Read: Scope of duty and the SAAMCo counterfactual following Manchester Building Society
3 December 2021
Disputes Quick Read: Facilitating transactions in cryptoassets - Lord Leggatt and the point of commercial law
24 November 2021
by Stuart Broom
Disputes Quick Read: Privy Council clarifies the law on freezing injunctions in aid of foreign proceedings
8 October 2021
Disputes Quick Read: Climate change litigation – what's the latest?
10 January 2022
Disputes Quick Read: Court decisions on the Disclosure Pilot Scheme – the 2021 roundup
20 January 2022
Disputes Quick Read: Assumption of responsibility - tax schemes and investors
22 March 2022
Disputes Quick Read: Dealing in crypto? Be careful what you call it
7 April 2022
by Multiple authors
Related Insights
The fine art of acquiring authentic artworks
by multiple authors
European parliament calls for EU to exit the Energy Charter Treaty
by multiple authors