On 29 July 2021, the Disclosure Working Group announced the latest in a series of updates to the Disclosure Pilot Scheme (DPS).
This scheme was originally launched on 1 January 2019 to limit the scope of disclosure to what is reasonable and proportionate. The relevant practice direction, an increasingly familiar sight to litigators, is PD51U which governs disclosure in the Business and Property Courts.
These changes were initially suggested on 5 February 2021 and submitted to the Civil Procedure Rules Committee for consideration on 9 July 2021. They should receive final approval in the coming months.
What are the key changes to the Disclosure Pilot Scheme?
Extending the DPS
- The extension of the DPS until 31 December 2022, four years from its launch, to allow time for implementing and applying these updates, and for any feedback on the DPS.
Creating a system for "Less Complex Claims" within the pilot
- This new category caters to claims which, by their nature, value, complexity and the likely volume of Extended Disclosure, are less likely to benefit from the full procedural requirements of PD51U.
- Less Complex Claims will include the majority of claims worth less than £500,000, and claims will receive this designation through either an agreement of the parties or from the court.
- Only Models A, B and D of Extended Disclosure will be available to Less Complex Claims, with Models A and B requiring neither identification of Issues for Disclosure nor a Disclosure Review Document. Appendix 5 also specifies limiting the number of issues for disclosure to five and keeping them brief, and drafting to a high level of abstraction.
- Despite the introduction of this new system, it still is important in each case to consider whether the matter would be more suited to the Shorter Trials Scheme.
- Further guidance on a simplified version of the Disclosure Review Document for Less Complex Claims is available in Appendices 6 and 7.
Recognising that disclosure in multi-party claims needs a bespoke approach for each case
- Paragraph 13.5 allows disclosing parties in multi-party cases to decide which parties should receive disclosed documents. If it's not possible to reach agreement, Disclosure Guidance can be sought or an application for directions made.
- This is a welcome change within an area subject to complaints over the difficulty of reaching agreement between multiple parties, particularly in cases where some of the issues do not apply to all the parties involved.
Changing the category C and D models of disclosure
- To simplify the process for agreeing lists, the Disclosure Working Group updated these models of disclosure.
- Model C is now called "Disclosure of particular documents or narrow classes of documents" not "Request-led search-based disclosure", reflecting the focused scope for disclosure under this model.
- It will also be easier to exclude narrative documents under Model D, potentially reducing the costs that are currently incurred when excluding documents. This change, reflected in paragraph 8.3, encourages parties to take reasonable steps to exclude narrative documents where it is reasonable and proportionate to do so.
- One of the main purposes of this particular update is to discourage the use of Model C, which the Disclosure Working Group believes is currently used excessively.
De-emphasising the need for a hearing
- The revised wording of paragraph 11 removes all mention of the "Disclosure Guidance Hearings" in favour of more general references to "Disclosure Guidance" and conditional "hearings".
- As with all the above, the hope is that a reduced emphasis on the need for hearings will streamline the DPS, making it and the overall disclosure process more efficient.
The community will likely welcome these changes. They show the Working Group’s openness to modifying the DPS to ensure that, when the scheme finally comes to an end, the changes have been thoroughly road-tested and are workable, while still achieving the reform needed to make disclosure a more manageable and effective process.
Find out more
You can read the full details of the changes here. To discuss the issues raised in this article in more detail, please reach out to a member of our Disputes & Investigations team.