The Disclosure Pilot: Anything but ‘Standard’

In recent years, Disclosure has become a cumbersome and formulaic process which has limited relevance to the changing course of litigation and the increasing use of technology.  The arrival of the Disclosure Pilot for the Business and Property Courts will therefore come as little surprise.

An overhaul of the disclosure process is certainly long overdue, and previous attempts to achieve this have perhaps been a little too subtle.  So the current Pilot is seen as a meaningful step in the direction of constructive reform for both the rules of disclosure and the disclosure obligations of the parties.

The Disclosure Pilot commenced on 1 January 2019 will apply to all existing and new claims proceeding in the Business and Property Courts in the Rolls Building as well as centres in Bristol, Birmingham, Cardiff, Leeds, Liverpool, Manchester and Newcastle.

The Pilot is set out in Practice Direction 51U of the Civil Procedure Rules and importantly, as well as changing the disclosure process, the Practice Direction imposes a number of ‘disclosure duties’ not only upon the parties, but also their legal advisors.  Significantly, there is a dedicated ‘sanctions’ provision within the Practice Direction which empowers the court to impose strict penalties for non-compliance, including the adjournment of hearings and adverse cost orders.

The parties are subject to the following duties:

  1. To take reasonable steps to preserve any relevant documents in its control;
  2. To disclose any adverse documents, irrespective of whether an order to do so is made;
  3. To act honestly in relation to the disclosure process; and
  4. To avoid a deluge of irrelevant documents.

Additionally, the following duties apply exclusively to the parties’ legal representatives:

  1.  To take reasonable steps to assist and cause the party to comply with its Disclosure Duties;
  2. To liaise and cooperate with the other parties’ legal representatives to promote the reliable, efficient and cost effective conduct of disclosure, including the use of technology; and
  3. To undertake a review to satisfy themselves that any claim by the party to privilege from disclosing a document is properly made and its basis sufficiently explained.
  4. The Pilot’s main aim is to introduce a revolutionary new ‘process’ of disclosure which falls into two mains camps; initial disclosure and extended disclosure.

Initial Disclosure

Parties are required to prepare an Initial Disclosure List together with copies of the ‘key documents’ from that list that they will rely upon, at the same time as serving their Statement of Case.  Key documents are defined as those which are considered necessary for their opponent to understand the case they have to meet. Both the list and the documents must be served upon opponents electronically, save for any documents which are known to be or have already been in the possession of the opponent, but only the list (not the documents) needs to be filed with the Court.

The key aim of initial disclosure is to enable parties to conduct an early assessment of their case, and thus increase the opportunity for settlement earlier in the proceedings.  It is also possible that in some cases, carrying out Initial Disclosure will do away with the need for further disclosure altogether.

Extended Disclosure

Any further disclosure in the proceedings is then referred to as Extended Disclosure.  However, it is only triggered by a specific request in the form of a new Disclosure Review Document (‘DRD’).

The DRD is a joint document completed by the parties together before the first Case Management Conference.  The purpose of the DRD is to list any issues in relation to disclosure, make proposals for how that disclosure is to be achieved, include an estimate of the likely cost and provide information about how that disclosure is stored.  The DRD is intended to replace the current Disclosure Report and Electronic Documents Questionnaire.

The parties also have the option to request a Disclosure Guidance Hearing in advance of the Case Management Conference to assist with considerations pertaining to the DRD.

Extended Disclosure will then take place by reference to 5 models, ranging from no disclosure at all to a wide search-based disclosure:

Model A – disclosure confined to known adverse documents.

Model B – limited disclosure.

Model C – requested-led searched-based disclosure.

Model D – narrow search-based disclosure, with or without narrative documents.

Model E – wide search-based disclosure.

In practice, compliance with whichever model of Extended Disclosure is ordered will involve service of:

  1.  A disclosure certificate with a statement of truth;
  2. An Extended Disclosure list of documents; and
  3. The disclosed documents themselves.

Fundamentally, the Pilot requires both improved cooperation between parties as well as intrinsic pro-activity by the Court.  The opportunity for change created by the Pilot is significant, but will require commitment by all involved to fully embrace its potential.

For more information about how the new disclosure pilot might affect you please contact Katy Sandel in our Dispute Resolution & Litigation team  https://www.kitsons-solicitors.co.uk/service/commercial-dispute-resolution-mediation-litigation/ at katy.sandal@kitsons-solicitors.co.uk 

For further details about about the Disclosure Pilot, visit:

Disclosure: CPRC approval of Pilot Scheme for the Business and Property Courts