HT-2022-000043 - [2024] EWHC 3180 (TCC)

For the purposes of PF57AD, a party gives disclosure by stating “that a document that is or was in its control has been identified or forms part of an identified class of documents and either producing a copy, or stating why a copy will not be produced” (§1.4, Appendix 1 of PD57AD, at §1.4)(White Book, Vol 2, p582) …. Santé were under a duty to the Court, pursuant to PD57AD §3.1(1)(White Book, Vol 2, p562) …. from the moment that they became aware that they “may become [parties] to proceedings” (i.e., pre-action), to take reasonable steps to preserve documents within their “control” that may be relevant to any issue in the proceedings.

The duty to preserve documents includes the duty to take all the steps at PD 57AD §4 …. (including notifying third parties who may hold documents relevant to an issue in the proceedings PD 57AD §4.2(3) [AUTH/797]).

The duty to preserve documents is an important part of disclosure and is well known to all litigants (and existed in the preceding pilot scheme (PD 51U which operated from 1 January 2019 to 1 October 2022) – and Lewis Silkin was also subject to their own duty to explain the duty of preservation to Santé (PD 57AD §4.4).

Further, Santé was required to confirm in writing when serving their particulars of claim that steps had been taken to preserve relevant documents in accordance with the duties under PD 57AD §3.1(1).