Application of the Disclosure Pilot
Despite the claim having been issued and an order for standard disclosure having been made prior to the commencement of the Disclosure Pilot (i.e. before 1st January 2019), the Chancellor held that the Disclosure Pilot applied in this case and to “…all relevant proceedings subsisting in the Business and Property Courts, whether started before or after 1st January 2019, even in a case where a disclosure order was made before 1st January 2019 under CPR Part 31” (judgment at ). Notwithstanding that many practitioners had up until this point considered the Disclosure Pilot not to apply to cases where a disclosure order had been made prior to the commencement of the Disclosure Pilot, the ruling is clear, that, all subsisting proceedings within the Business and Property Courts, regardless of when those proceedings began, will fall within the remit of the Disclosure Pilot.
The White Book Mistaken
The Chancellor also held that the note to CPR 51.2.10 in the latest edition of the “White Book” – was wrong, and in light of this judgment, is now redundant. The note stated that the Disclosure Pilot did not apply to any proceedings where a disclosure order had been made before it came into force, unless that order is set aside or varied. To his mind, although a pre-existing disclosure order will not be disturbed by the commencement of the Disclosure Pilot, the Disclosure Pilot will nonetheless apply to all existing and new proceedings in the Business and Property Courts.
Where practitioners had previously considered that the Disclosure Pilot did not apply, following the Chancellor’s decision, this is clearly not the case. Parties must now co-operate in order to ensure compliance. However, the extent to which parties will co-operate with each other - especially where they have been embroiled in adversarial litigation for some time - is yet to be seen. We anticipate that this decision may be the start, but not the end, when it comes to the Court offering further guidance on its application.