In AAH Pharmaceuticals Ltd and another v Jhoots Healthcare Ltd and another, HHJ Worster offered some practical guidance on the duty of cooperation owed by the parties pursuant to the Disclosure Pilot Scheme (DPS).
This judgment arose out of the defendants’ application to vary an extended disclosure order under paragraph 18 of Practice Direction (PD) 51U. The underlying dispute arose in May 2019. The claimants are wholesalers of pharmaceutical products. The defendants have been buying products from the claimants since 2009.
This case is subject to the DPS, which is currently operating in the Business & Property Courts. It was first introduced in 1 January 2019 for an initial period of two years, and was recently extended until 31 December 2021.
On 15 May 2020, Waksman J issued the first detailed disclosure order. On 15 July 2020, Waksman J made further orders with respect to issues concerning the appropriate date range and keyword searches for the electronic disclosure. One of the directions given by Waksman J provided that “different sets of keywords should in principle be adopted for different issues as opposed to using one generic set of keywords across all issues”.
Despite extensive interparty communications in July and August 2020, the parties were struggling to agree on the use of keywords. While the claimants maintained that using different sets of keywords for different issues was the correct approach, the defendants ran a single set of keywords over several issues, claiming that this approach was consistent with the DPS.
The main disagreement stemmed from the claimants’ decision to apply linked keywords to their searches in an effort to reduce the number of responsive documents from 240,000. The defendants expressed their concern with the use of linked keywords without prior agreement, adopting the position that amendments to keywords had to be agreed before the keywords were tested. The defendants were concerned with the possibility that agreeing to keywords after testing may result in the parties adopting different disclosure exercises, which would be difficult to compare.
The claimants rejected the defendants’ approach, branding it “uncooperative”, and confirmed in their August 2020 letter that they would continue to apply revised keywords. This prompted the defendants to lodge the application to vary the existing disclosure orders. The judge did not make the requested orders. Instead, he asked the parties to engage in further discussions by reference to his “guidance” (which is covered below). He explained that he expected the parties to adopt a “genuinely collaborative approach, to be flexible and open to testing proposals, and to stop fighting old battles or scoring points”. He proceeded to list the case for a Disclosure Guidance Hearing, giving the parties a week and a half to agree their approach.
The DPS imposes a duty of cooperation on the parties in the disclosure stage of the proceedings. Paragraph 2.3 of PD 51U requires the parties to “cooperate with each other and to assist the court so that the scope of disclosure, if any, that is required in proceedings can be agreed or determined by the court in the most efficient way possible”.
In UTB LLC v Sheffield United Ltd, the court explained that:
“Legal representatives have continuing obligations under paragraph 3.2(3) of PD51U ‘to liaise and cooperate with the legal representatives of the other parties… so as to promote the reliable, efficient and cost-effective conduct of disclosure’ and indeed the trial of the action more generally.”
By reference to these duties, HHJ Worster explained that cooperation is “imperative” to the application of the DPS, and that breach of these duties can have serious adverse costs consequences for the party that refuses to cooperate.
HHJ Worster’s “guidance” on the DPS
HHJ Worster did not agree with the claimants’ contention that the defendants were trying to delay the trial. Instead, he noted that the claimants should not have: (1) refused to provide the defendants with further information; (2) halted the dialogue between the parties; or (3) pursued the electronic searches with the linked keywords.
The judge explained that the DPS does not allow one party to “proceed unilaterally”; if a party was allowed to do that, it would have defeated the purpose of the duty to cooperate. HHJ Worster held that while the claimants’ attempt to stick to the disclosure timetable was “admirable”, he found that their decision to “proceed unilaterally” was ultimately the wrong thing to do. The claimants’ conduct resulted in both sides having to spend time and money on the application, and that time and money would “have been better spent in conference calls sorting out the ‘nitty gritty’”.
HHJ Worster also set out the guidance, or “views”, that he would have given had this been an actual Disclosure Guidance Hearing. He suggested the parties take the following guidance into consideration nonetheless:
- The number of responsive documents on both sides meant that something “significant” had to be done to reduce the number of documents for the eventual manual review.
- The defendants had to move away from their position of using one generic set of key works for all issues. The claimants’ proposal to use sub-groups should be “actively explored”.
- Similarly, the claimants’ proposal of pairing and linking keywords was also a sensible strategy.
- The parties should try to conduct face to face discussion instead of engaging in correspondence, noting that a weekly telephone call would be the “minimum” in this situation.
- “Set piece letters” do not necessarily promote a collaborative process. Speaking to each other is more likely to promote cooperation and would save the time usually spent writing long letters.
- The parties must be willing to share information and to try reasonable proposals made by the other side. Disclosure is a process requiring a realistic approach and it will not and cannot always be “perfect”.
The judge encouraged the parties to take a pragmatic, holistic approach to the disclosure exercise. He recognised that the claimants offered sensible solutions to the issue of excessive numbers of responsive documents but acknowledged that their ultimate decision to unilaterally proceed with applying their solutions without the agreement of the defendants bordered on the breaching of cooperation duties.
Parties whose cases are subject to the DPS should take note of the judge’s guidance, particularly with respect to maintaining communication with the other side.