Tuesday, January 29, 2019

Disclosure Pilot Scheme

The mandatory Business and Property disclosure pilot was introduced in the Business and Property Courts of England and Wales on 1st January 2019.

The pilot will run for 2 years and details of the pilot are set out in the new Practice Direction 51U (PD), for ease of reference we have provided a link to the Directive below:

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/practice-direction-51u-disclosure-pilot-for-the-business-and-property-courts

Background 

The disclosure pilot is the biggest reform since the Civil Procedure Rules (CPR) almost 20 years ago; it has been created in response to court users concerns over excessive costs, scale and complexity of disclosure. The pilot sets about reforming the process itself along with the duties of litigants and lawyers.

A working group was established in 2016 to develop a practical solution to the modern issues faced by those involved with disclosure in the courts. Under the old scheme, disclosure was not focused to the issues of the case and there was often insignificant engagement between parties. The requirement for a cultural change was uncontested within the working group and the view was that CPR Part 31 was to be entirely rewritten. Since the CPR were introduced the volume of data that may be subject to disclosure has increased, partly due to technology advances, and as a result the standard disclosure test has proved unfit for purpose.

Process Changes

The reforms have replaced the standard disclosure test with the following:

  • Initial Disclosure

Parties are to disclose up to 1000 pages of material, or 200 documents, which ever is larger. These will be presented electronically and are to be comprised of key documents relevant to the claim. The list of documents must be served with an Initial Disclosure Certificate.

  • Extended Disclosure

This is only ordered where appropriate to fairly resolve an issue in a case. If extended disclosure is necessary, a request must be made to the court using a joint Disclosure Review Document (DRD)

In cases where extended disclosure has been ordered the pilot has introduced a 30-minute disclosure guidance hearing to help improve efficiency. The aim is to keep these hearings short but there is skepticism as to whether this is achievable in practice

Duties of Litigants and Lawyers

Under the new rules set out in the PD there is specific duties imposed on both litigants and lawyers. In summary:

  • The scope for disclosure is widened and the preservation of such documents is obligatory. Even if no disclosure order is made, one of the core duties is to disclose known documents that are averse to the disclosing party, this is to prevent the watering down of disclosure.
  • There is a further duty on litigants and lawyers to co-operate with each other and assist the court in this area.