We look at key court decisions on the Disclosure Pilot Scheme (DPS) from the past year, as we look forward to another 12 months of the scheme's operation.

The DPS has been operating in the Business and Property Courts since 1 January 2019 and was due to end on 31 December 2021 but has been extended by the 133rd PD Update to 31 December 2022. The scheme was introduced in an attempt to create a more reasonable and proportionate disclosure process. It is governed by Practice Direction 51U (PD 51U). Case law and guidance on the operation of the scheme continues to emerge from the courts and from the Disclosure Working Group. 

Below we summarise three cases dealing with control of documents held by third parties and pre-action disclosure.

Pipia v BGEO Group Ltd (formerly known as BGEO Group PLC) [2021] EWHC 86 (Comm) 

The court gave further guidance on the meaning of control. The claimant sought disclosure of WhatsApp messages stored on mobile phones of two key individuals residing outside the jurisdiction, who were not parties to the case. 

Cockerill J ordered additional Extended Disclosure of WhatsApp messages stored on the mobile phone of one witness, who had previously had a service contract with the defendant which authorised the defendant to access data held on his devices. The second witness had not had a contractual relationship with the defendant, and so his phone was not within the defendant's control. This distinction highlights the need for parties to scrutinise at an early stage employment/service contracts when considering if documents held by third parties are within their control.

The case also highlights the significance of WhatsApp in cases involving bad faith. The judge held that the immediacy of WhatsApp communications was such that they were likely to give the court 'an unguarded picture' of their author's actions and so the 'necessity' threshold, under PD 51U.18, was satisfied.

Various Airfinance Leasing Companies and another v Saudi Arabian Airlines Corporation [2021] EWHC 2904 (Comm) 

Continuing with the theme of information held on personal devices, the High Court rejected the application that would have required the defendant to disclose documents held on mobile phones of two of its senior personnel. 

The defendant argued that it lacked the necessary 'control' as it had no entitlement under Saudi Arabian law to 'possess, inspect, or control or obtain access' to the data held on the personnel's mobile phones. Having considered evidence on the law of Saudi Arabia, the court preferred the conclusion that the documents were not within the defendant's control. As the requirement of 'control' is the basis of both disclosure under CPR 31 and the DPS, the court further held that it could not require a party to exercise best endeavours to obtain or to request a third party to provide the documents. 

This judgment is a further reminder for parties to consider early whether documents held by third parties could be deemed within either party's control, and clarifies the position where the relationship is governed by foreign law.

Willow Sports Ltd v SportsLocker24.com Ltd and another [2021] EWHC 2524 (Ch) 

This judgment is of interest for the court's approach to pre-action disclosure under CPR 31.16 in a DPS context. The Deputy Master found that the court had jurisdiction to make an order but declined to do so. The Deputy Master held that the request for disclosure was too widely drawn and the court was not 'in a position to undertake the task of attempting to prune it'. Among other things, the Deputy Master noted that:

• given the distrust between the parties there was a real likelihood of the applicant being dissatisfied with any disclosure provided, risking satellite litigation about compliance with the order;
• the applicant sought disclosure to help it decide which cause of action it could pursue. This suggested the applicant was "fishing" to ascertain how to put its case.

The case is an illustration of the difficulties a party will face when seeking pre-action disclosure and a reminder that such applications should be confined to documents that are 'strictly necessary'. 

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To discuss the issues raised in this article in more detail, please reach out to a member of our Disputes & Investigations team.