Disclosure Pilot Scheme approved

​The Civil Procedure Rule Committee has confirmed its approval of the Disclosure Pilot Scheme, heralding major changes to the way disclosure will be conducted in the Business and Property Courts.

The Civil Procedure Rule Committee (CPRC) has confirmed its approval of the Disclosure Pilot Scheme. Subject to ministerial consent (which will be sought later this year) the scheme will launch on 01 January 2019, and apply to all new and existing proceedings in the Business and Property Courts across England and Wales, bar some specific exemptions including competition claims, admiralty cases and IPEC cases.

The new rules are the product of a two year review undertaken by the Rolls Building Disclosure Working Group (DWG), chaired by the Rt. Hon. Dame Elizabeth Gloster DBE and formed in response to widespread concerns expressed by court users and the profession regarding the perceived excessive costs, scale and complexity of disclosure in English litigation. A drafting committee established by the DWG to consider the form of a new rule comprised The Hon Mr Justice Knowles CBE, Chief Master Marsh, the legal adviser to the Chancellor of the High Court and Simmons & Simmons partner Ed Crosse, assisted by PSLs David Bridge and Kirsty Oliver.

Our summary of the original proposals of the DWG can be found here. As the framework remains the same, we will not set it out in detail again here. In summary though, the main proposals included:

  • express duties on parties and their representatives, with sanctions for breaches
  • limited disclosure of documents relied upon and necessary to understand the case by each side with their statement of case
  • no automatic right to further disclosure, but a framework for each party to propose further “Extended Disclosure” if appropriate
  • a requirement to identify “Issues for disclosure” and for proposals to focus on these
  • five models for “Extended Disclosure” to replace the existing menu of disclosure options under CPR Part 31.5(7), only three of which will require a party to conduct a search for documents, and
  • a new court document, the Disclosure Review Document, or DRD, to provide the framework for discussions between the parties, and rulings of the court where necessary, as to the proper parameters of disclosure.

Since those proposals were published in draft for consultation on 02 November 2018, the Practice Direction (PD) has been amended substantially to take account of feedback from over 35 organisations and firms. Here we look at some of the issues raised in the feedback and how the final PD addresses them.

Duties of the parties and their representatives

The imposition of express duties on the parties and of separate duties upon their legal advisors is a central plank of the pilot scheme. Only minor changes have been made here since the 02 November draft, but the duties on the legal representatives no longer include an obligation to “cause” the party to comply with its duties, only to “take reasonable steps to advise and assist the party” to comply. Representatives remain under a duty to obtain written confirmation from their client that they have complied with their obliglation to preserve documents.

Initial Disclosure

The concept of Initial Disclosure (called Basic Disclosure in the original draft) is retained. Initial Disclosure, of key documents necessary for other parties to understand the case they have to meet, will be given with statements of case. No search beyond any the party may have undertaken for its own purposes is required for Initial Disclosure. This light touch approach is specifically intended to address some concerns expressed during the consultation about front-loading. There are a number of exceptions, such as where the parties agree to dispense with Initial Disclosure, or where Initial Disclosure would comprise more than (the greater of) 1000 pages or 200 documents.

Adverse Documents

Even where no Extended Disclosure is ordered, all parties are under an obligation to disclose “known adverse documents”. Adverse documents are defined as a document containing information which “contradicts or materially damages the disclosing party’s contention or version of events on an issue in dispute”, or supports the contention or version of events of an opposing party. Such documents are “known” to a party if it is aware they are, or were, within its control.

In the feedback, several contributors questioned how awareness should be determined in the case of a company or organisation. The final PD defines a company or organisation as being aware of an adverse document if any person with accountability or responsibility for the events or circumstances the subject of the case, or for the conduct of the proceedings, is aware of it. It is made clear that such a party must take reasonable steps to check the position with any person meeting that description who has since left the company or organisation.

Perhaps because of this need for companies to conduct checks of those whose awareness will be attributed to it, there remains no requirement to produce adverse documents with Initial Disclosure. Where Extended Disclosure is ordered, adverse documents must be produced at the same time as other documents. Where no Extended Disclosure is ordered, a Disclosure Certificate confirming that all known adverse documents have been disclosed must be provided within 60 days of the first CMC.

The Models for Extended Disclosure

The models for Extended Disclosure remain as they were in the draft PD, though the title of Model A has changed to “Disclosure confined to known adverse documents”, which makes its scope clearer.

The final version of the PD also makes clear that the purpose of relating Disclosure Models to Issues for Disclosure is to limit any searches required and the volume of documents to be disclosed. Where using different Disclosure Models for different Issues for Disclosure would not have this effect, it will be inappropriate.

Costs

The DRD includes estimates of the cost of a party’s disclosure, or where proposals are not agreed, separate estimates for disclosure based on the proposal put forward by each side. One change to the PD since the original draft is that, rather than automatically postponing the completion of the disclosure section of Precedent H in cases where costs budgeting applies, it now allows the parties to agree to postpone this if they so choose.

Timetable

The timetable for the parties to meet their new obligations is longer than in the original draft of the PD:

Step 1 Parties must indicate if they intend to seek Extended Disclosure Within 28 days of close of pleadings  
Step 2  Claimant prepares draft list of Issues for Disclosure  Within 42 days of close of pleadings 
Step 3 Defendant responds with any additional and/or different Issues for Disclosure As soon as practicable but no later than 14 days after Step 2 
Step 4  Any party seeking Model C (request based) disclosure must complete list of requests (DRD section 1B)  No later than 28 days after Step 3 
Step 5  Party receiving Model C requests to respond to them (DRD section 1B)  Within 14 days of Step 4 
Step 6  Parties to exchange DRDs with completed section 2, setting out details of their document landscape  No later than 14 days before the first CMC 
Step 7  Finalised single joint DRD to be filed at court  No later than 5 days before the first CMC 

What happens next?

The period until 01 January 2019 has been allowed for parties and the judiciary to prepare for the mandatory pilot scheme. Members of the DWG will be participating in a series of presentations and “road show” events to outline and explain the thinking behind the new Practice Direction to users, the profession and the judiciary.

As the pilot scheme will apply to cases that have already commenced, all litigants in the Business and Property Courts will need to take the time to familiarise themselves with the new regime.

The CPRC approved version of the PD can be found here. As noted, it is possible that the Ministry of Justice may wish to comment further on this draft and potentially also to vary the date for implementation before final approval is given. We can be reasonably confident, however, that these new rules will be implemented substantially in the form of the CPRC approved draft.

Ed Crosse, Immediate Past President of the LSLA and one of the four members of the Disclosure Working Group responsible for drafting the new rules, notes:

 “The new pilot scheme is much needed and will be a success provided clients, the legal profession and judges truly embrace the new rules. Change is never easy and, at least initially, it will require an investment of time and focus by all for the rules to bed down. No matter how they are drafted, rules can only achieve so much. The success or otherwise of this scheme in my view turns on whether we seize this opportunity to take a new, modern, efficient and robust approach to disclosure.”

“Other jurisdictions are following this initiative with interest and no doubt will seek to emulate it; but that takes time. These new rules should help ensure that our courts continue to be regarded as innovative, and highly attractive for domestic and overseas clients with disputes to resolve, especially in a post-Brexit era.”

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.