AAH Pharmaceuticals Ltd & Anor v Jhoots Healthcare Ltd & Anor

Under the Disclosure Pilot, parties must cooperate in defining, testing and refining electronic search parameters. A party should not conduct searches unilaterally where the searches determine the scope of later manual review. Genuine disagreement should be addressed through continued engagement and, if necessary, a Disclosure Guidance Hearing or an application to vary the disclosure order. The court will not ordinarily micro-manage the process, but may intervene where agreement cannot be reached. The parties must adopt a flexible and proportionate approach, recognising that search results may require iterative refinement. A party’s refusal to continue discussions may itself undermine the cooperative process and lead to further cost and delay.

The defendants applied to vary an order governing extended disclosure in commercial proceedings concerning pharmaceutical sales, contractual rebates and incorporation of standard terms. The parties had agreed many disclosure matters but disagreed about the grouping of issues, refinement of keywords and the use of linked search terms. The claimants had begun reviewing documents using revised searches without agreement from the defendants.

The application was made under paragraph 18 of the Disclosure Pilot. The central issues were whether the claimants could proceed unilaterally with the revised searches and what procedural course should be adopted to resolve the parties’ disagreement.

1. Application and governing framework. The application to vary the extended disclosure order was considered under CPR Practice Direction 51U, paragraph 18. A variation required the applicant to show that it was necessary for the just disposal of the proceedings and reasonable and proportionate. The court declined to make the specific orders sought because they were not shown to achieve the desired result.
2. Duty to cooperate. The Disclosure Pilot imposes continuing duties on parties and their legal representatives to cooperate, liaise and assist the court so that the scope of disclosure can be agreed or determined efficiently. These duties are substantive and may attract serious adverse costs consequences. They require parties to engage with reasonable proposals, exchange relevant information and remain open to testing and refining search methods.
3. Electronic searches. Because electronic searches determine the universe of documents subjected to more intensive manual review, they should not be conducted unilaterally. The parties should engage with each other with a view to agreeing the search methodology. Search parameters may require iterative adjustment after testing. The court agreed with the approach in Agents’ Mutual Ltd v Gascoigne Halman Ltd [2019] EWHC 3104 (Ch), including its emphasis on cooperative search design, although the relevant observation in that case was obiter.
4. Practical directions. The parties were required to re-engage in discussions on the basis of guidance concerning issue-specific keyword groups, linked search terms, sampling of other customer material, information-sharing and regular direct communication. The matter was listed for a Disclosure Guidance Hearing, and the parties were directed to seek agreement on a revised timetable.
5. Costs. The provisional view was that the costs of the application should be costs in the case, subject to written submissions if either party sought a different order.