Disclosure - What information about search methodology must be shared?

Following on from our article last year reminding parties of the importance of proper preparation when planning a disclosure exercise, the recent judgment of Master Clark in Kevin Taylor v Van Dutch Marine Holding Limited and others [2019] EWHC 324 (Ch) (judgment here) deals further with what information around searches for electronic documents needs to be shared during disclosure.

With the Disclosure Pilot Scheme in the Business and Property Courts – and in particular the Disclosure Review Document – now in full swing, it is hoped that the type of brinkmanship demonstrated in this case will diminish. That being said, pending the wider implementation of the Disclosure Review Document, the Taylor v Van Dutch judgment is a timely reminder that disclosure must be a co-operative process. It is not a procedural step to be used to try to gain an advantage in litigation.

The Claimant's complaint was that the N265 Lists of Documents were not completed correctly, in that they did not explain the search parameters applied: dates, locations and categories of documents. This omission was compounded by the lack of completion of the, optional, Electronic Disclosure Questionnaire. In particular, the N265s did not comply with CPR 31.10(6)(a) which requires a statement setting out the extent of a parties' search. As highlighted by the Master, the N265 itself reminds parties to "list what was searched and extent of search".

The Master agreed, he stated that the "disclosure lists… manifestly fail to satisfy the requirements of CPR 31.6(a), by not adequately setting out the searches carried out". He added that "the disclosure list should enable the court and the opposing party to evaluate the adequacy of the search carried out. Disclosure is a transparent, not an opaque process."

The judgment is another reminder that the Courts are taking an increasing interest in parties complying with their disclosure obligations in full, rather than playing mere lip-service to the rules. Furthermore, although the EDQ is an optional document, completing it is best practice. It should not be forgotten that a discussion with the other side in respect of the scope and methodology of electronic searches prior to the first CMC is already mandatory under Practice Direction 31B.

As highlighted above, the introduction of the mandatory Disclosure Review Document under the Disclosure Pilot Scheme should reduce the need for applications such as the one in this case. That being said, we look forward to seeing how the themes in the Disclosure Pilot Scheme spread in practice to achieve the aims of making disclosure a less burdensome and more co-operative process.