31 March 2021
Disputes Quick Read – 26 of 62 Insights
Disputes Quick Read: Amendments to the Disclosure Pilot Scheme – a step in the right direction
The Disclosure Pilot Scheme (DPS) was due to end on 31 December 2020 but will now remain in force until 31 December 2021. The extension is accompanied by amendments to the scheme addressing feedback received by the Disclosure Working Group (DWG) from practitioners.
Governed by Practice Direction 51U (PD 51U), the DPS has been operating in the Business and Property Courts since 1 January 2019 and was introduced to create a more reasonable and proportionate disclosure process.
However, feedback from practitioners since then is that the DPS is not achieving its intended goal, with complaints around the lack of clarity and unduly onerous requirements relating to the disclosure review document (DRD). This was creating increased costs without any material improvement in the accuracy of disclosure provided and result in an increased burden on the court to determine disclosure-related issues.
PD 51U has now been amended to address this feedback, with the changes coming into effect from 6 April 2021. We provide an overview of these amendments below, and consider what their potential impact will be.
What are the amendments to PD 51U?
- The timing of disclosure of known adverse documents has been clarified.
- Document preservation notices only need to be served on employees or former employees where there are reasonable grounds for believing they may have disclosable documents in their possession which the party does not already have.
- The requirements of Initial Disclosure have been clarified, including that adverse documents do not need to be disclosed and the parties can agree to dispense with Lists of Documents at this stage.
- The List of Issues for Disclosure and Section 2 of the DRD (which deals with the parties' parameters for disclosure) are now only required for search-based disclosure.
- There is now flexibility around the completion of the DRD; not every section is needed in cases where there is likely to be limited disclosure, or the identification and retrieval of documents is straightforward.
- The circumstances when parties can request a Disclosure Guidance Hearing and directions relating to search-based disclosure have been clarified.
Will the amendments make a difference?
In document-heavy cases, disclosure can be a lengthy and expensive process. We have seen first-hand the benefits of technology-assisted review and disclosure analytics in saving time and costs for clients in document review.
Unfortunately, under the DPS, the early stages of disclosure (agreeing the issues and search parameters) can be an arduous and expensive process. This is largely due to the detailed nature of the DRD, which itself has become a contentious document. So, it's doubtful whether these changes will really make a difference in document-heavy and more complex cases.
That said, we hope that these changes – in particular the flexibility around the DRD requirements – will streamline the preliminary stages of disclosure to focus the disclosure process without the additional costs burden for clients.
Find out more
To discuss the issues raised in this article in more detail, please reach out to a member of our Disputes & Investigations team.
In this series
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Disputes Quick Read: Judicial Review and Courts Act 2022 – now in force
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Disputes Quick Read: an important reminder of the duty to disclose electronic documents in native format
13 June 2022
Disputes Quick Read: ENRC prevails in claim against former solicitor
26 May 2022
Disputes Quick Read: Climate change litigation update – McGaughey v Universities Superannuation Scheme Limited
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Disputes Quick Read: ClientEarth v Shell – climate change litigation shifts focus to UK companies
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Disputes Quick Read: High Court rules that failure to provide adequate data security is not a positive act
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Disputes Quick Read: Judicial Review and Courts Bill – unpacking the UK government's proposed amendments
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Disputes Quick Read: Freezing injunctions – maximum custodial sentence imposed for breach
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Disputes Quick Read: The online future of civil justice – the end of the legal profession or the end of legal drudgery?
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Disputes Quick Read: One Blackfriars administrators cleared of misfeasance
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Disputes Quick Read: Not your prerogative – the Independent Review of Administrative Law reports its recommendations on judicial review
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Disputes Quick Read: UK Supreme Court rules on the territorial extent of the SFO's powers
26 February 2021
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Disputes Quick Read: No dropping anchor – parent company liability for environmental claims
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20 January 2021
Disputes Quick Read: Should you still choose the English courts to have jurisdiction in your international contracts after Brexit?
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Disputes Quick Read: Privilege lost in the EU post-Brexit (with exceptions)
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Disputes Quick Read: Law on interest applicable to US dollar awards reaffirmed
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Disputes Quick Read: Why the modernised LCIA rules are a welcome update
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Disputes Quick Read: The latest on Unexplained Wealth Orders
7 May 2020
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Disputes Quick Read: High Court orders parties to explore options for 5-week remote trial
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Disputes Quick Read: Tomlin Orders – ensuring the confidentiality of settlement terms
27 April 2020
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21 April 2020
Disputes Quick Read: A different approach to witness evidence
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by James Bryden
Disputes Quick Read: Coronavirus - a growth in virtual courts?
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Disputes Quick Read: Embracing remote hearings – the experience to date
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Disputes quick read: climate change activism by litigation
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Disputes Quick Read: Commercial Court's arbitral power shift
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Disputes Quick Read: Court stays evictions during COVID-19 – is this lawful?
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Disputes Quick Read: Will the civil justice system change forever post COVID-19?
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Disputes Quick Read: Retailers reign supreme in Visa and Mastercard proceedings
9 July 2020
Disputes Quick Read: The contra proferentem rule reconsidered?
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Disputes Quick Read: Scope of duty and the SAAMCo counterfactual following Manchester Building Society
3 December 2021
Disputes Quick Read: Facilitating transactions in cryptoassets - Lord Leggatt and the point of commercial law
24 November 2021
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Disputes Quick Read: Privy Council clarifies the law on freezing injunctions in aid of foreign proceedings
8 October 2021
Disputes Quick Read: Climate change litigation – what's the latest?
10 January 2022
Disputes Quick Read: Court decisions on the Disclosure Pilot Scheme – the 2021 roundup
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Disputes Quick Read: Assumption of responsibility - tax schemes and investors
22 March 2022
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