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'Room for nuance': lists of issues for disclosure under PD 51U

'Room for nuance': lists of issues for disclosure under PD 51U

Overview

In a ruling made at a hearing on 18 January 2022 in the case of Cambridgeshire County Council v Bam Nuttall Limited & Ors [2022] EWHC 275 (TCC), Mr Justice Waksman gave guidance on the formulation of the list of issues for disclosure (the "LOID") required under the Disclosure Pilot Scheme (set out in Practice Direction 51U ("PD 51U")). 

One of the first, and still most well-known, cases to provide guidance on the LOID was McParland & Anr v Whitehead [2020] EWHC 298 (Ch).  There, Sir Geoffrey Vos, then Chancellor of the High Court, ruled that "unduly granular or complex" LOIDs should be avoided. 

In the instant case, the Claimant had taken a broad approach to the LOID, guided by the essential pleas underpinning their claim, but without descending into the detail of the pleaded particulars. The Defendants argued that a more granular approach was appropriate in order to understand the true nature of the issues in dispute, including whether certain issues required disclosure, or were matters of law or issues for expert evidence.

Waksman J acknowledged the decision in McParland, but considered that Vos J had made his "remarks generally".  Waksman J went on to clarify that Vos J had not been "dealing with a very substantial construction contract claim which is highly technical in nature and where the whole question of design, for which there will obviously be documents, is a critical issue."

The Judge stated that there was "clearly much room for nuance".  He also noted that he did not want to waste the significant amount of work that had already gone into the LOID.  He then held that the Claimant's formulae were too general and risked giving rise to disputes further down the line as to what they covered.

It seems that parties should still heed the general guidance in McParland and not seek to overcomplicate the LOID.  However, in line with the flexible approach already in place under PD 51U in relation to multi-party cases (see for example paragraph 1.12) and less complex claims (see Appendix 5), this ruling suggests that the courts will take into account the nature and complexity of individual cases in determining the appropriate level of granularity for the LOID.

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