Disclosure Pilot: High Court Clarifies Test For Varying Disclosure Orders And Encourages Use Of Disclosure Guidance Hearings

The High Court has considered applications relating to a disclosure order made under the disclosure pilot scheme which has applied in the Business and Property Courts since 1 January 2019: Vannin Capital PCC v RBOS Shareholders Action Group Ltd [2019] EWHC 1617 (Ch).

The decision clarifies that, in applying to vary a disclosure order under the pilot rules, there is no need to satisfy the so-called Tibbles criteria, ie that there has been a material change of circumstances or the order was based on misstated facts. The test set out in the rules is that the variation is necessary for the just disposal of the proceedings and is reasonable and proportionate. Where the variation sought is to reduce, rather than expand, the scope of disclosure, the decision suggests that the question of proportionality will be addressed on the basis of whether the existing order is disproportionate, so that a variation of the order would be proportionate.

In giving judgment the deputy judge also took the opportunity to encourage parties to make use of the procedure established under the pilot for disclosure guidance hearings of no more than 30 minutes. These are intended to allow parties to obtain the assistance of the court, in a relatively informal way, to resolve issues relating to the scope of disclosure or implementation of a disclosure order. Anecdotal evidence suggests they are not being widely used, which may suggest some scepticism on the part of court users as to their potential for saving time and costs.

Background

The underlying dispute relates to Vannin's funding of the claims of certain claimants in the RBS Rights Issue Litigation, which settled in 2017, and Vannin's claim to be entitled to a share of the settlement proceeds. The defendants include 46 corporate shareholders and some 8000 retail shareholders.

The current decision relates to an order for extended disclosure made in February 2019 under the disclosure pilot, the rules for which are set out at CPR PD51U. The order required that disclosure be provided in the form specified in the parties' Disclosure Review Document (DRD), and that the parties use all reasonable endeavours to agree a final form of Appendix 1 to the DRD identifying the individual defendants who were to provide the necessary disclosure. The parties agreed the terms of Appendix 1, which included all 46 of the corporate shareholder defendants and nine of the retail shareholder defendants.

The claimant then applied for an order...