New Practice Direction on Electronic Disclosure

Accompanying the new Practice Direction on Disclosure and Inspection, PD 04/25 (see separate Coren Law Update) is a Practice Direction on Electronic Disclosure, PD 05/25. This is brand new territory for the Manx High Court. PD 05/25 resembles, yet differs from, PD57AD under the CPR.

The Court had recently held that: “the ethos governing PD 51U [in England and Wales, now largely replaced by PD 57AD] is reflected in best practice in this court”: Mir Ltd & another v Bader & related claims (ORD 21/0001, ORD 21/0002, ORD 21/0009) (29.05.25) (§ 6). 

The stated aim of PD 05/25 is: “to encourage and assist the parties to reach agreement in relation to the disclosure of Electronic Documents in a proportionate and cost-effective manner” (para 2). Unless ordered otherwise, the PD only applies to the Ordinary Procedure. The Court (or parties by consent) can, however, apply the PD in the Chancery/Summary Procedures (para 3).

General principles

These include: “technology should be used… to ensure that document management [is] undertaken efficiently and effectively”; “disclosure should be… in a manner which gives effect to the overriding objective”; and “Electronic Documents [defined in para 5 c] [“ED’s”] should generally be made available for inspection in a form which allows the party receiving the documents the same ability to access, search, review and display the documents as the party giving disclosure” (para 5 b-d).

Preservation of documents

The advocate’s duty to advise clients of the need to preserve disclosable documents now extends to ED’s (para 7).

Pre-CMC discussions

Before the first CMC, parties and advocates must discuss using technology to: create lists of documents to be disclosed; give e-disclosure; and present documents to Court (para 8). They must also discuss disclosure of ED’s, including: “a. the categories of [ED’s] within the parties’ control, the computer systems, electronic devices and media on which any relevant documents may be held, storage systems and document retention policies; b. the scope of the reasonable search for [ED’s] required by rule 7.36… c. the tools and techniques… to reduce the burden and cost of disclosure of [ED’s], including-: Iimiting disclosure of documents or certain categories of documents…; ii. the use of agreed Keyword Searches; iii. the use of agreed software tools; iv. the methods to be used to identify duplicate documents; v. the use of Data Sampling; vi. The methods to be used to identify privileged documents… vii. the use of a staged approach to the disclosure of [ED’s]; d. the preservation of [ED’s]… e. the exchange of data relating to [ED’s] in an agreed electronic format using agreed fields; g. the basis of charging for or sharing the cost of the provision of [ED’s]… and h. whether it would be appropriate to use the services of a neutral electronic repository” (para 9). Parties may find it helpful to exchange the Electronic Documents Questionnaire (see the Schedule), answers to which must be verified by a Statement of Truth (para’s 10-11).

The parties’ duty to engage on (amongst other things) Keyword Searches follows the Court’s criticism of the absence of such engagement in Mir Ltd (above) (at § 73).

Before the first CMC, the parties should summarise which matters they agree/disagree on as to e-disclosure (para 14). Parties unable to reach agreement should seek directions (para 17).

The reasonable search; keyword and other automated searches; metadata

Guidance as to the “reasonable search” is provided at para’s 20-24. It may be reasonable to search for ED’s by Keyword Searches (defined at para 5 f), supplementing with individual techniques (para’s 25 and 27). Disclosure of metadata is dealt with at para 28.

Lists of documents

Para 30 amends para’s 8-10 of PD 04/25 (dealing with Form HC13) where a party is disclosing ED’s.

Provision of disclosure data in electronic form

Para 31 set out how e-disclosure should be provided. 

Provision of electronic copies of disclosed documents

Under para 32, the parties are to co-operate at an early stage as to the format for inspection of ED’s. Save as otherwise agreed or ordered, documents should be in native format (para 33), preserving the metadata relating to the date of creation of each document. A party should provide any available searchable OCR versions of documents which have been redacted (para 34). 

Specialised technology

Para 36 makes provision as to specialised technology. 

Electronic Documents Questionnaire

This is set out in the Schedule.