PJSC Tatneft v Bogolyubov: Commercial Court judges orders list of issues for disclosure ahead of pilot scheme
One of the changes being introduced by the Disclosure Pilot Scheme, which comes into force on 1st January 2019, is the need to produce a List of Issues for Disclosure. Issues for Disclosure will be those 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. Not every issue in dispute will therefore be included in this List.
In this Commercial Court case, a List of Common Ground and Issues was produced in accordance with the Commercial Court Guide, setting out the main issues of fact and law in the case. One of the issues in this case was whether the issues should be further clarified through an amendment to the List of Common Ground and Issues. The defendant argued that the list of issues is a reference point both for disclosure and for evidence and it would be sensible therefore to incorporate the additional issues into the general document. However, the judge held as follows: "having regard to the approach which this court will be adopting from 1 January when the pilot scheme on disclosure comes into operation I can see merit in having the scope of disclosure set out in a separate document, particularly in a case like this where the list of issues would otherwise become so lengthy it risks losing utility for other purposes".
COMMENT: Accordingly, this is the first reported decision to date where a document which is in effect the List of Issues for Disclosure has been ordered, in advance of the pilot scheme. Although the scheme does not officially start until 1st January 2019, this case indicates that the judiciary is already prepared for it and may, in appropriate cases, adopt some of the changes in advance of the official start date.
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