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The List of Issues for Disclosure dissected
Related expertise:Commercial dispute resolution
The mandatory (save for limited exceptions) Disclosure Pilot Scheme (PD 51U), running in the Business and Property Courts until 31 December 2020, introduces the concept of a List of Issues for Disclosure. This article considers the nature of the List of Issues for Disclosure, and highlights its similarities and differences compared with a ‘list of issues in litigation more generally. It then sets out useful points of principle relevant to the preparation of a List of Issues for Disclosure.
Introduction
A notable point of evolution and innovation in the Disclosure Pilot Scheme (DPS), under Practice Direction (PD) 51U, has been the express framing of disclosure by reference to “Issues for Disclosure”: more particularly, a “List of Issues for Disclosure”, agreed between the parties (with the oversight and assistance of the court, as required).
For many practitioners, the concept of a ‘list of issues’, and its use in informing disclosure, is nothing new: such lists are a litigator’s (and court’s) tool of many years’ standing. On closer inspection, the function (and formulation) of lists of issues and Lists of Issues for Disclosure share some common features.
As a result, practitioners can then draw on existing experience of preparing lists of issues to help in the design of Lists of Issues for Disclosure… to a degree. A clear note of caution is merited: just as there are similarities between the two species, there are key differences as well.
So, practitioners will still need to approach the formulation of the List of Issues for Disclosure from a fresh perspective. While court users await with interest any further published guidance or case law on the point, for now the framework describing the content, and creation, of a List of Issues for Disclosure is found chiefly at section 7 of PD 51U, read with commentary included within the Disclosure Review Document (DRD).
The content of any given List of Issues for Disclosure is naturally case-specific. That said, there are some useful general points of principle that can be drawn from the DPS documents.
A list of issues
A brief consideration of the established idea of a ‘list of issues’ (or the like) is helpful, in highlighting the particular, novel features of the List of Issues for Disclosure, as well as their common features.
Directions for the preparation and deployment of variants of lists of issues are found in a number of court guides.
By way of example, the Technology and Construction Court Guide (TCC Guide) (Second Edition, third revision) states at para 14.4.1 that:
“The parties should, if possible, provide the judge at the PTR with an agreed list of the main issues for the forthcoming trial (including, where appropriate, a separate list of technical issues to be covered by the experts). The list of issues should not be extensive and should focus on the key issues. It is provided as a working document to assist in the management of the trial and not as a substitute for the pleadings.”
In a similar vein, the Commercial Court Guide (10th Edition, 2017) provides at paragraphs D6.1 to D6.4 for the formulation of a “List of Common Ground and Issues” to capture (amongst other things):
“the key issues in the case. The list should include the main issues of both fact and law […] [which] is intended to be a neutral document for use as a case management tool at all stages of the case by the parties and the Court.”
Noting that in most cases it should be possible for the document to be concise, the TCC Guide observes that the document is not envisaged to be either static or to supersede the parties’ statements of case.
The significance of lists of issues (in their various forms) has been underscored by the courts on a number of occasions. Recent examples include Longmore LJ in Scicluna v Zippy Stitch Limited and others [2018] EWCA Civ 1320 at [14]:
“Ever since the Woolf reforms, parties in the High Court have been required to agree lists of issues formulating the points which need to be determined by the judge. That list of issues then constitutes the road map by which the judge is to navigate his or her way to a just determination of the case.”
And, similarly, in SRCL Limited v The National Health Service Commissioning Board (also known as NHS England) [2018] EWHC 1985 (TCC) Fraser J noted at [30] that “a List of Agreed Issues is a vital tool in modern litigation, not only in the specialist courts, but in the High Court generally […].”
As to points of practice in their preparation, themes across the various guides include that these lists of issues should: (i) be concise, (ii) focus on the key issues in the case, (iii) not serve (or thus attempt to serve) as a substitute for the pleadings; and, (iv) look to be a neutral/agreed document.
List of Issues for Disclosure
The DPS recognises that, in many cases, the List of Issues for Disclosure will sit, ultimately, alongside a list of issues (or the like). While they will likely share common features, the DPS is clear that the two documents will serve different purposes.
As the commentary to the DRD identifies neatly, at paragraph 3 of the section entitled “Completing Section 1A of the DRD”:
“The Issues for Disclosure are a point of reference for further discussions between the parties about the manner and scope of disclosure to be given. They are not a statement of case. Nor are they intended to replace the List of Issues, which the parties may be required to prepare and file in advance of the case management conference, although the two documents should ultimately be consistent with each other.”
Issues for Disclosure
Turning to the mechanics of the preparation of a List of Issues for Disclosure (here below “List”), the bedrock (and a key point of departure from the preparation of a ‘conventional’ list of issues) is the incorporated definition of ‘Issues for Disclosure’.
Defined at paragraph 7.3 of PD 51U, these are (emphasis added):
“… only those key issues in dispute, which the parties consider will need to be determined by the court with some reference to contemporaneous documents in order for there to be a fair resolution of the proceedings. It does not extend to every issue which is disputed in the statements of case by denial or non-admission.”
As such, in keeping with conventional lists, the Issues emerge, predictably from the statements of case. However, it is clear that the DPS envisages that not every point in dispute will be an ‘Issue’. They are limited to (i) not just those that are “Key”, but further (ii) that need to be determined with some reference to contemporaneous documents for there to be a fair resolution.
Preparing the List
In a given case, the preparation of a List may well result in the further refinement of the number of active Issues for Disclosure. While setting out the framework for the preparation of a List, the guidance at paragraph 7 of PD 51U, read with the commentary, provides helpful insights into the content and form of a List. Key points include the following:
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First, when a first draft of the List is prepared, the party preparing it (at first blush, the claimant) is obliged to ensure that it “provides a fair and balanced summary of the key areas of dispute identified by the parties’ statements of case and in respect of which it is likely that one or other of the parties will be seeking Extended Disclosure.” (Emphasis added.) (paragraph 7.4, PD 51U.)As such, not all potential Issues for Disclosure will make the List, but those on which Extended Disclosure is likely to be sought.(From paragraph 7.2 of PD 51U, it appears that, where the parties have already agreed the equivalent of a List of Issues for Disclosure (for example as part of a fuller list of issues), then they can bypass the steps designated for the preparation and negotiation of a working draft List and move to identifying any relevant Models for Extended Disclosure under section 1A of the DRD.)
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Second, the draft List is to be discussed between, and so critically analysed by, the parties (a process underpinned by the parties (and their representatives’) duties to cooperate in the design of disclosure found at, for example, paragraph 2.3 of PD 51U) with a view to seeing if any of the Issues for Disclosure can be removed from the List (paragraph 7.6, PD 51U). It may well be, then, that the number of Issues for Disclosure will be thinned out further, through discussion.
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Third, it is clear that, under the DPS, the List is intended to be a dynamic document, which can be revised or supplemented at any time before or after the CMC (whether in light of amended statements of case subsequently served, or otherwise). (Paragraph 7.7, PD 51U.)To that end, the commentary in the section of the DRD headed “Completing Section 1A of the DRD” elaborates usefully that (in summary):
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The scope of disclosure may require ongoing review, discussion and co-operation between the parties. (Paragraph 12.)
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The fact that a party has not included a particular Issue for Disclosure in the DRD does not prevent it from later proposing that new Issue should be added to the List. (Paragraph 13.)
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The parties may agree to changes to the Issues after the first CMC (without having to seek the Court’s approval) unless the effect would be to materially change an order already made, or impact in a material way on the procedural timetable, costs and/or trial date. Readers should consider the wording used, in full. (Paragraph 14.)
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Disputes
Where the parties are unable to agree the Issues and/or their proper formulation, the DPS provides for two obvious routes for resolution. The first is at the CMC itself, where (assuming section 1A of the DRD has been completed as required) the court will be notified of any disputes over the inclusion or exclusion of an Issue and any argument(s) over formulation and placed to consider them.
Second, it may be that the parties could make use of the novel Disclosure Guidance Hearing procedure (set out at paragraph 11 of PD 51U) to obtain an early hearing before the court to obtain a rapid resolution of a dispute over the preparation of a List.
Preparing a List
Drawing together themes discussed above, working principles relevant to the preparation of a List of Issues for Disclosure include the following:
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The process will most likely start with a critical review of the statements of case, to identify key areas of dispute.
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Next, potential Issues for Disclosure are identified, being: (a) key issues in dispute, which also (b) will need to be determined by the court with some reference to contemporaneous documents in order for there to be a fair resolution of the proceedings. The focus on this point in the text at paragraph 7.3 of PD 51U is a clear indication that this critical review should be conducted with particular care.
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Moving to drawing up the working draft List, a further filter will apply: will a party be seeking Extended Disclosure in respect to the Issue? This will call, in part, for a careful consideration of not only the statements of case but wider factors such as the materials that have already been circulated between the parties (and a party’s particular disclosure requirements, more widely).
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With that and/or thereafter, the parties will engage in a narrowing process, to identify whether Issues for Disclosure can be pruned.
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As a matter progresses, parties should keep a watchful eye on whether, conversely, there are any additional (or amended) Issues for Disclosure which should be raised for inclusion in an updated List of Issues for Disclosure (or, indeed, if any further Issues can be removed).
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Overall, given the focus on, for example, (i) identifying only the key issues; (ii) that the document is not intended to replace the statements of case; and, (iii) that it is to be “a fair and balanced summary”; the DPS indicates clearly that the List should be, to the extent practicable, a concise document.
This article was first published on Practical Law. Charles Raffin is co-author of Electronic Disclosure Law and Practice, Oxford University Press, 2017.
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