Explain the rules for disclosure of documents

Working with clients unfamiliar with English disclosure rules? The Commercial Court has recently highlighted the importance of fully explaining disclosure duties to clients.

It is of great importance that clients fully understand the requirements for disclosure in litigation proceedings. This was reiterated in the recent case of Provimi France SAS and others v Stour Bay Company Ltd [2022] EWHC 218 (Comm), where the Commercial Court found that a solicitor must do more than give a simple instruction to their client to retain documents if the client is unfamiliar with disclosure duties under English law and one must clearly explain what documents are relevant and how to ensure they are not deleted or destroyed.

Background and disclosure requirements

The litigation began between Provimi and other companies and Stour Bay in October 2019. Provimi argued that a Feed Grade product bought from Stour Bay under a trade contract in January 2015 did not comply with their specification requirements and/or was not of satisfactory quality or reasonably fit for purpose. The parties were required to give disclosure pursuant to the Disclosure Pilot Scheme as laid out in Practice Direction 51U of the CPR. Paragraph 3 of the scheme obliges a person who knows that it is or will be party to litigation to take reasonable steps to preserve the documents within its control and imposes a duty on its solicitor to take reasonable steps to advise that party to comply with the duties set out in the CPR. Although litigation did not commence until October 2019, both parties were aware of potential proceedings as early as late 2015. It is from this point that, pursuant to the CPR, both parties were required to preserve documents within their control. However, shortly before disclosure was due to take place in December 2020, the solicitors acting for one of the claimants notified the defendant that in line with the claimant’s document retention policy, all documents held in individual Microsoft Outlook files were deleted permanently after three years. This resulted in crucial documents surrounding the purchase of the feed being erased.

Court’s comment

Correspondence between the claimant and the claimant’s solicitor showed that the failure to put a litigation hold on the document retention policy was not a failure arising from the solicitors, but was due to the claimant’s in-house lawyer being unfamiliar with the disclosure procedure in common law jurisdictions and failing to fully understand the advice given to them as to what types of documents should be retained. David Edwards QC giving judgement, commented that deletion of the documents was “highly regrettable” and that the case served as an important reminder to solicitors dealing with clients that are unfamiliar with English disclosure rules that a simple instruction to retain relevant documents may be insufficient. It may, for example, be necessary to fully explain what the meaning behind relevant is. David Edwards QC cited the case of Efobi v Royal Mail Group Ltd [2021] 1 WLR 3863 and concurred that whether the court should draw adverse inference from a party deleting potentially pertinent documents is “largely a matter of ordinary rationality and common sense.”

Practical considerations when explaining disclosure rules to a client

Practice Direction 51U.3.2(2) requires solicitors to take reasonable steps to advise and assist the party to comply with its disclosure duties. However, this case emphasises that in instances where solicitors are advising clients who are unaware of the English courts’ disclosure protocols, extra care must be taken. This may manifest itself in the following ways:

1. Explain how a firm’s document retention policy may need to be suspended to ensure that relevant documents are not deleted;
2. Explain clearly what is meant by the term relevant and what documents may fall into that definition; and
3. Ensure that both these pieces of advice are delivered as soon as litigation appears possible.