Disclosure pilot scheme updates

Under the disclosure pilot in Practice Direction 51U paragraph 3.2 of the Civil Procedure Rules in the Business and Property Courts, a legal representative who had conduct of litigation is under a duty to the court to review and satisfy themselves that any claim to privilege is properly made and reasonably sufficiently explained.

In a recent judgment, Tonstate Group Ltd v Wojakovski [2022] 2 WLUK 193, the court sets out how claims to privilege, which are expressed as privileged due to the nature of the document no longer have a place in modern litigation, rather parties are under a duty to categorise the precise ground of privilege.
 
Background

The applicant applied for an order for specific disclosure against the respondent and the consolidation of its claim with other proceedings. During the course of the proceedings, the applicant and respondent agreed a pre-action disclosure order in the main action which required the respondent to provide specified categories of documents relevant to an issue in the proceedings.
 
The order stated that the respondent would provide a letter identifying any categories of documents in respect of which it claimed a right or duty to withhold the giving of inspection, together with an explanation of the basis of the claim. The respondent provided disclosure but withheld certain categories of documents on the grounds that they were subject to legal advice privilege and litigation privilege.
 
The applicant considered that the disclosure given was inadequate and sought an order for further itemisation of the documents over which privilege was claimed and for consolidation with the main proceedings in order to avoid duplication of costs and inconsistent findings. The respondent argued that there was no jurisdiction to order further itemisation as the information was provided in response to a pre-action disclosure order and the action had since begun, and that it should not be drawn into the main action.
 
Decision

The court found that solicitors who had provided disclosure pursuant to an agreed pre-action disclosure order and who had claimed privilege on behalf of their clients were required to further itemise the documents by tightly defined categories whilst stating the precise ground of privilege claimed for each category. The court went on to say that parties must itemise into clearly defined categories rather than individually itemising each document as to the precise ground of privilege, as this would be disproportionate.
 
In considering the approach to be taken, the court held that a careful approach had to be taken to limit the claims to privilege to that which could be properly asserted.
 
This clarification is not only in line with the disclosure pilots aim of making disclosure more proportionate and tailored to the circumstances of each case, but it seeks to limit costly and time-consuming litigation.

With special thanks to Solicitor Apprentice, Ellen Austin, co-author of this article.