The Disclosure Pilot

26 April, 2019

Most of us have heard by now of the new Disclosure Pilot (“the Pilot”) which came into force on 1 January 2019 and will continue for two years. I had the pleasure of appearing for a party in the first ever hearing under the Pilot, a CCMC on 2 January 2019, in relation to a disputed off-plan sale of a number of developments.

The Pilot is designed to promote timely and more proportionate disclosure and applies to all cases in the Business and Property Courts, regardless of when they started (see para 1.2 of CPR PD51U).

There seems, however, to be some confusion as to whether the Pilot applies to cases in which disclosure orders had been made prior to the Pilot entering into force, as opposed to cases which were simply commenced before then. The prevailing view had been that it did not, based on the following passages from PD51U:

“The pilot shall not disturb an order for disclosure made before [1 January 2019]” (para 1.3 of PD51U)” and

“The pilot does not apply to any proceedings where a disclosure order had been made before it came into force unless that order is set aside or varied” (commentary at CPR Part 51.2.10).

The guidance in 51.2.10 seems quite clear but, in a recent judgment in UTB LLC v Sheffield United & Others [2019] EWHC 914 (Ch), the Chancellor, Lord Justice Vos, clarified that it was wrong:

“The Pilot was deliberately put in place without transitional provisions so that it would apply to all existing proceedings (apart from those specifically excluded) even where an initial disclosure order had been made. It seems to me that the note [at Part 51.2.10] is a misunderstanding of paragraph 1.3 of the Pilot … Plainly, it is one thing to say that a pre-existing order will not be disturbed by the commencement of the Pilot, and quite another to say that the Pilot is not applicable to any proceedings where a disclosure order has already been made. Only the first is correct.

”Somewhat ominously, the Chancellor then emphasised that parties will have to give detailed thought to the new rules under the Pilot and specifically to the way in which these rules would affect any application for extended disclosure. My experience echoes this warning, as, in the case I mentioned above, the other side has been sent away by the court a few times so far by reason of non-compliance with the Pilot. Each time the court provided more guidance and emphasised the need to comply with the Pilot before the case could be progressed.

In respect of further applications for disclosure under the Pilot in cases where disclosure had been ordered pre-January 2019, the Chancellor said that courts would interpret the Pilot in a way that makes it work effectively.

To end on a more positive note, below is a quick reminder of the main disclosure stages under the Pilot, leading up to a disclosure order at the first CMC:

  •  There are 5 models of disclosure under the Pilot, named from A to E. Model A is “no order for disclosure”, Model B is “limited disclosure”, Model C is “request-led search-based disclosure”, Model D is “narrow search-based disclosure” and Model E is “wide search-based disclosure”.
  •  Initially, unless agreed otherwise or too burdensome, parties must provide the key documents they rely on with their pleadings, similar to disclosure in arbitrations. This is called “Initial Disclosure” – if no disclosure is ordered after this (as to which, see below), this corresponds to Model A;
  •  If a party wants disclosure beyond the Initial Disclosure (which they would usually), they need to fill in a number of prescribed forms and engage with the other side on them within prescribed time limits:

(i) Within 28 days of the closure of statements of case, each party must state whether or not it wants “Extended Disclosure” (in order words any model of disclosure other than Model A);

(ii) If one or more parties want Extended Disclosure, the claimant must prepare and serve a draft list of issues for disclosure, within 42 days of the closure of statements of case. This list must be in the “Section 1A” form, which is provided in 51UPD.28. It is worth noting that this form has a typographical error in that it should say “to be completed by defendant [rather than “claimant”] in the penultimate column;

(iii) Form 1A requires the claimant to identify the issues in the case and suggest a model of disclosure for each issue – for example, in a misrepresentation claim, if a party wants disclosure of the e-mails containing the representations, the issue might be phrased as “the wording of the alleged representations” and model C may be suggested for disclosure under this issue;

(iv) The defendant must respond with comments in the relevant columns of form 1A within 14 days after service of the list;

(v) The parties then must seek to discuss and agree the draft list of issues and the model for each;

(vi) Any party proposing model C for any issue must complete, within 28 days from when the defendant responded to form 1A, the “Section 1B” form, which is provided at 51UPD.30;

(vii) Form 1B is meant to provide a shopping list of documents or categories of documents sought under each issue;

(viii) No later than 14 days before the first CMC, the parties must fill in the “data mapping” questionnaire in the “Section 2” form, which is provided at 51UPD.32;

(ix) No later than 5 days before the first CMC, the claimant must file a single joint Disclosure Review Document (“DRD”), which is formed of sections 1A, 1B and 2 put together.

(x) As soon as practicable thereafter and in any event before the first CMC, the parties must each file a Certificate of Compliance in the from at 51UPD.34, which contains a statement of truth in relation to the DRD and a confirmation that the parties are aware of their duties under the Pilot.

Daria Gleyze

DariaGleyze@threestone.law


Daria Gleyze wins scholarship for Florida advocacy course

21 March, 2019

Daria Gleyze has won a scholarship from the South Eastern Circuit for their annual Florida advocacy course.

The South Eastern Circuit 2019 Advanced Civil Trial Advocacy Program is held at the University of Florida, Gainesville. The course is based on a complex civil trial and is designed to provide in-depth, demonstration-based instruction of trial advocacy techniques through performance, critique and video review. The training is provided with the assistance of Gavin Mansfield QC and US judges and attorneys.

Four scholarships are available for junior members of the South Eastern Circuit of up to seven years’ Call.

Click here for a full description of the scholarship


A Public Lecture at the London School of Economics

22 January, 2019

Professor and Barrister Surya P. Subedi, QC, OBE, has been invited to deliver a public lecture on ‘Human Rights and Constitutionalism in Nepal’ at the London School of Economics and Political Science on 13 February 2019 at 6 pm. Registration is mandatory to attend the lecture.

In recent years, Nepal has gone through its share of tragedies. It has experimented with liberalism and communism, and adopted an ambitious Constitution designed to usher the country from a Monarchy to a Republic, and from a unitary system to a federal structure. The Constitution enshrines a long list of rights, and the country has ratified most major international human rights treaties.

However, the question that arises is: how democratic is this Constitution, and is it robust enough to guarantee basic freedoms such as the freedom of speech? These are the questions that Professor Subedi will address in his lecture.


Daria Gleyze awarded “Pro Bono Employed Barrister of the Year”

10 December, 2018

Daria Gleyze has been awarded “Pro Bono Employed Barrister of the Year 2018”.

Daria’s clients have praised her “above-and-beyond service”, her work helping them understand the process and providing personal support whenever possible.

“She was a vital instrument by assisting in protecting the rights of a tenant, which I am certain left an imprint on the opposite party. Ms Gleyze is an excellent representative of the Law” Pro bono client in a landlord and tenant matter.

There were nine categories up for nomination and a star-studded judging panel, which included the Lord Chief Justice, Chair of the Bar and the elusive Secret Barrister.

This year’s awards were expanded beyond the one Bar Pro Bono Award which has been presented to a barrister each year since 1997, in order to recognise the wider contribution barristers and chambers make to providing free legal advice and advocacy to the most vulnerable in society.

The award categories were:

• Young Pro Bono Barrister of the Year, sponsored by Place Campbell

• Junior Pro Bono Barrister of the Year, sponsored by Juriosity, the Legal Knowledge Network

• Pro Bono QC of the Year, sponsored by Judicial & Silk (formerly JSB Judicial)

• International Pro Bono Barrister of the Year

• Employed Pro Bono Barrister of the Year

• Pro Bono Chambers’ Staff Member of the Year, sponsored by the Legal Practice Management Association

• Pro Bono Innovation of the Year, sponsored by Lexis Nexis

• Pro Bono Chambers of the Year

• Lifetime Achievement in Pro Bono

The awards were hosted at the historic Fleet Street bank Child & Co on 24 October 2018.

Click here for Daria’s full interview with Counsel magazine.


Professor Surya P. Subedi QC joins CIETAC Panel of International Investment Arbitrators

21 November, 2018

Professor Surya P. Subedi QC of Three Stone has been selected for inclusion in the list of the Panel of International Investment Arbitrators of China International Economic and Trade Arbitration Commission (CIETAC).

His book on international investment law was translated into Chinese by a law professor in Shanghai and published by a prestigious publishing house in Beijing in 2017. Professor Subedi has also served as a member of a task force on Global Investment Policy of the World Economic Forum known as Davos in Switzerland.


Three Stone Insolvency seminar

27 September, 2018

Three Stone is delighted to announce we will be hosting a seminar on Recent Developments in Insolvency on 31st October, 2018.

David Mohyuddin QC will chair the event. Speakers include:

Sebastian Kokelaar: Officeholders & Legal Privilege Post Lemos

Stephen Baister: Mediation in an Insolvency Context

Emma Knight: A Short Update on Recent Insolvency Decisions

Full details may be found here.

Numbers for this seminar are limited, so please reserve a place at clerks@threestone.law.


Stephen Baister joins mediation group

18 September, 2018

We are delighted to announce that Stephen Baister, formerly Chief Bankruptcy Registrar of the High Court, has joined Chambers’ Mediation Group.

Stephen will act as a mediator primarily in insolvency, insolvency-related and company law cases but will consider appointments in other commercial law disputes where appropriate.

Stephen was appointed as a bankruptcy registrar of the High Court in 1996, serving as chief registrar from 2004 until his retirement in 2017. He continues to sit as a deputy Insolvency Judge in the High Court. He is a Member of the Chartered Institute of Linguists, an honorary Member of the Insolvency Lawyers Association and an honorary Fellow of the Chartered Institute of Credit Management of which he is also president. He was made an honorary bencher of Lincoln’s Inn in 2017.


Three Stone Private Client Seminar

17 February, 2017

After the success of Three Stone’s inaugural seminar on 29th November 2016, we are delighted to announce that Stephen Lloyd (a Deputy Chancery Master) will chair our next seminar on topical issues in Private Client.  The programme is:

Andrew Cosedge: Cough Up or Get Out: grappling with issues of non-doms, residence and tax

Sebastian Kokelaar: Mistake after Pitt v Holt: business as usual?

Kerry Bornman: The Abode of Love and other curious chancery cases: a private client round up

Stephen Lloyd: A View from the Chancery Master’s Bench: a Deputy Master’s guide to practice and procedure

The seminar will last 1 hour with a brief Q&A session followed by a drinks reception. Registration from 6pm onwards for a 6.30pm start.

For CPD purposes, (1) the learning aim is to improve the attendees knowledge and understanding of current trends and important developments in private client work and (2) the learning objective is that the attendees will be able to demonstrate an improved level of competence, knowledge and performance in their core areas of practice.

Full details may be found here.

Numbers for this seminar are limited, so please reserve a place at clerks@threestone.law.

Feedback from the previous seminar included:

Excellent, I hope to bring others from the firm next time.” 

 “I learnt a lot today

Excellent speakers, relevant and practical presentations & topics.”


Prof Surya Subedi OBE to be appointed Queen’s Counsel

13 January, 2017

The Lord Chancellor has announced that Professor Surya Subedi OBE is to be appointed Queen’s Counsel (honoris causa) on 13 February 2017. We offer him our warmest congratulations.

The announcement on the Government’s website (which may be found here) describes Professor Subedi as:

“…a distinguished academic who has made a major contribution to international law and human rights. He has published extensively in international law and human rights. He served for 5 years between 2010 and 2015 as a member of the Advisory Group on Human Rights to the British Foreign Secretary.

During his tenure as UN Special Rapporteur for human rights he produced 4 substantive reports published by the United Nations focussing on judicial, parliamentary, electoral, and land reform in Cambodia. A number of his recommendations were implemented by the government. Collectively, these 4 reports provided an analytical point of reference for democracy, human rights and the rule of law in the country and became a primary source of reference for human rights defenders, UN agencies, and donor agencies that continue to be drawn on today. The work he carried out as Special Rapporteur was undertaken in addition to his full-time job at his university in England. It is an appointment based on substantive knowledge and integrity of experts serving in their individual capacities.

He was awarded an OBE in 2004 for services to international law, and he has continued to make an exceptional contribution over a sustained period at the international level to develop international law and to advance human rights. He was admitted to the Bar of Nepal in 1981 and called to the Bar of England and Wales in 2007. He currently is Professor of International Law at the University of Leeds and a member of Three Stone Chambers, Lincoln’s Inn, London.”


James Couser succeeds in the Court of Appeal

1 December, 2016

couserJames Couser has recently succeeded in Sands v Layton [2016] EWCA Civ 1189 in persuading the Court of Appeal that the correct interpretation of s 375(1) of the Insolvency Act 1986 means that a Judge at first instance has jurisdiction to hear an application to review, rescind or vary an order made by another High Court Judge sitting on appeal. The Court of Appeal reviewed two conflicting decisions of the High Court and adopted James’s reasoning.

 


Menu