The List of Issues for Disclosure dissected
A list of issues
“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.”
“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.”
“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.”
List of Issues for Disclosure
“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
“… 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.”
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:
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.)
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.
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):
The scope of disclosure may require ongoing review, discussion and co-operation between the parties. (Paragraph 12.)
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.)
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.)
Preparing a List
Drawing together themes discussed above, working principles relevant to the preparation of a List of Issues for Disclosure include the following:
The process will most likely start with a critical review of the statements of case, to identify key areas of dispute.
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.
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).
With that and/or thereafter, the parties will engage in a narrowing process, to identify whether Issues for Disclosure can be pruned.
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).
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.
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