Business and Property Court Meeting Cardiff
Flooding, Local Justice, Disclosure Pilot & Search Orders
By Cathrine Grubb
Even the Chancellor of the High Court, has been affected by storm Dennis, having been prevented from attended Monday’s B&PC meeting due to the widespread flooding. Sir Jeffrey Vos sent his apologies and assurances that he intends to arrange a new date to come to Cardiff to discuss B&PC Business in the near future.
Heading the meeting were B&PC Supervising Judge for Wales, Mr Justice Marcus Smith and HHJ Jarman QC, who provided useful insight into issues of digital case management, the disclosure pilot and search orders.
Local Justice
Smith J expounded the benefits of B&P claims being tried locally. This would not only save costs for the parties, but be more convenient and promote local justice. Cardiff as a capital city is a centre of expertise in its own right given the skills of the local legal profession and experience of presiding and supervising judges. If High Court judges are needed they will be provided.
Local justice has many benefits, such as saving costs, making it more convenient for the parties, but have the added advantage that matters can usually be listed much quicker in Cardiff than in London.
Smith J is giving priority to ensuring B&P work moves as quickly as possible. Appeal matters are usually being turned around in around 2 months.
There have been some difficulties getting cases listed before the district judges because some have family tickets and responsibilities. HHJ Jarman has had a meeting with the district judges who have come up with various ways to improve the listing in B&PC matters, so parties should be seeing improvements shortly.
E-Filing
The teething problems experienced are not confined to Wales. There is a common misconception that e-filing is a universal case management system, when it is not. It’s a very capable augmentation of paper files, but not a replacement for them. This means that bundles still need to be produced for hearings, a requirement which is currently catching many practitioners out.
The advantages of the system are to ensure that pages and papers do not get lost, enables documents to be put before judges quickly and reduces the amount of paper involved. The downside is the system is gloriously inflexible. To transfer a case from London to Cardiff or vice versa currently involves printing out all documents at one end and scanning them all back in at the other.
Drop down menus are also a common cause for complaint. There currently exist an incredible 47,000 ways of originating process in the courts of England and Wales, which have been painstakingly replicated in the online system. If the wrong drop down menu is used papers may get lost. If you notice an error the best way to rectify this is to contact the local court staff: Tracey Davies, Melissa Cam or Amanda Lerego.
The courts appreciate that there is a learning curve when introducing a new system and so have been lenient with mistakes to begin with. But practitioners beware: there will be less leniency in the future. You may well risk claims being struck out if these have not been e-filed when they should have been.
Watch this space for a list of do’s and don’ts on e-filing.
Disclosure Pilot PD 51U
The courts would welcome feedback on the disclosure pilot, which aims to make disclosure more proportionate by tailoring what disclosure is required to specific issues in the case. The old notion of there being a default that there is standard disclosure is gone. PD 51 U envisages the two types of disclosure: Initial Disclosure and Extended Disclosure.
With Initial Disclosure, parties are required to identify the documents you seek to rely on in statement of case in initial disclosure.
When considering Extended Disclosure there is now no single model to govern the whole case. Practitioners have to identify the various issues in the case and for each issue work out which model is best.
Extended disclosure is broken down into 5 models: which gets more intrusive as you go down the list:
- Model A: Disclosure confined to known adverse documents
- Model B: Limited Disclosure
- Model C: Request-led search-based disclosure
- Model D: Narrow search-based disclosure, with or without Narrative Documents
- Model E: Wide search-based disclosure
To make matters more complicated, it may not be that the case that same model for disclosure is right for each side.
Smith J asked those attending to ‘spare the praise, we need to hear the problems’ in order to know how to improve the system.
Those attending were happy to oblige noting the following issues:
- This approach is frontloading costs, which may prove problematic for cases of lesser value. This has also been echoed by The Commercial Bar Association in their review of the pilot.
- Gaming of the system by certain litigants is the consequence of any rule change resulting in satellite litigation and attempts to drive up costs in order to put pressure on the other side.
- The system is currently creating more conflict between parties.
- Bespoke rules and small cases don’t mix.
- The pilot does not specifically grapple with electronic documents.
- Lawyers being conservative beasts are reluctant to make concessions to preserve the client’s position should circumstances change. Being able to work provisos into any agreement may assist concessions.
The judiciary appeared open to the idea of revisiting disclosure if practitioners agree a sensible marker. However courts would be reluctant to give parties a second bite at the cherry. Any condition would need to be very clearly worded and in seeking to exercise the proviso, a party would need to demonstrate clearly:
- Why it is sensible to revisit disclosure; and
- That this can be done in a practical and cost effective way.
The court may like an approach where parties provide ‘we may need to come back if X happens’, but this is subject to the qualification that the courts will not be willing to require party to completely re-do the disclosure process.
Search Orders
Practitioners are reminded of the difference between disclosure and search orders. The purpose to the latter being to preserve documents. Given the large proportion of documentation being stored electronically, this is no longer a page turning exercise.
Electronic documents should be preserved on memory stick or other device. This will clearly lead to a large amount of documents being preserved which may be privileged, confidential and/or irrelevant. Parties should use the return date to obtain an order as to what should be done with the data. Usual best practice may be for the Respondent’s solicitor to go through the documents marking which are relevant and which are not.
For further guidance please see: