Newsflash: Disclosure pilot scheme for the Business and Property Courts

In January 2019, a disclosure pilot scheme will commence for a two-year period across the Business and Property Courts ("B&PCs") at the Rolls Building in London, and in the centres at Birmingham, Bristol, Cardiff, Leeds, Liverpool, Manchester and Newcastle. It will be mandatory for the majority of cases proceeding in the B&PCs, including matters falling within the Property List. The scheme is intended to radically reduce the time and costs associated with the wide ranging scope of "Standard Disclosure" by offering a menu of disclosure options. Hopes are that the pilot will lead to wider reform, beyond the B&PCs and perhaps into the County Courts.

Origins of the pilot

A Disclosure Working Group (DWG) was created in May 2016 at the initiative of Sir Terence Etherton (then Chancellor of the High Court, now Master of the Rolls) to propose reforms to the disclosure process governed by Part 31 of the Civil Procedure Rules (CPR 31).

The DWG, gathering lawyers, judges, representatives of professional associations, users of the Rolls Building and other experts, created a whole new framework for disclosure and opened it up for consultation.

The resulting pilot scheme, which has been two years in the making under the scrutiny of a wide range of interested parties, was approved by the Civil Procedure Rule Committee on 13 July 2018. Only ministerial consent to its launch remains outstanding, and this should be sought later this year with no challenge expected.

Rewriting rules for the future

The DWG's diagnosis is clear: the current disclosure rules in CPR 31 are outdated. Why outdated? There is a clear perception that the current disclosure regime has become inadequate in the electronic age of emails, smart devices, and virtual data rooms. Standard Disclosure, which is most commonly ordered by the Courts, is often excessive in scale, cost, and complexity.

The changes

For cases subject to the pilot, CPR 31 and the associated practice directions will no longer apply. A new practice direction (view the draft version) will have to be followed. This introduces the following key procedural changes:

• Initial Disclosure: Each party must provide an initial disclosure list of documents to all other parties at the same time as its statement of case, together with copies of the key documents it intends to rely on, and documents necessary to understanding the claim/defence. However, the parties can agree to dispense with this rule, or the Court can order that it isn't required.
• Disclosure Review Document (DRD): The DWG created this to replace the Electronic Disclosure Questionnaire (download the draft version). It is intended to allow the parties to identify issues for disclosure and can be updated as the claim progresses. They should discuss and seek to agree a draft list of issues for disclosure ahead of the first costs and case management conference (CCMC).
• Extended Disclosure: This can be sought by either party but is optional. Usually, a request for Extended Disclosure will be dealt with by the Court at the first CCMC. An order for Extended Disclosure can take the form of one or more of 5 models A to E –
• Disclosure confined to known adverse documents.
• Limited disclosure.
• Request-led search-based disclosure.
• Narrow search-based disclosure, with or without Narrative Documents.
• Wide search-based disclosure.

Model A essentially supplements Initial Disclosure where documents may have been missed out, while Model E, at the other extreme, will only be ordered "in an exceptional case" and with justification from the parties in a dedicated section of the DRD. There is a clear intention to do away with default standard disclosure under CPR 31.

• The Court may give directions to use specific software tools or de-duplication methods to reduce the burden or cost of disclosure – it is expected to exercise wide case management powers.

It isn't guaranteed to work, though. The Law Society published a response to the DWG's proposals in February, which makes some valid points:

• Accommodating the proposals will take a significant amount of the Courts' time, thus judicial buy-in will determine how effectively these can be implemented. Court resources are likely to be overburdened, which may result in significant delays.
• The perceived issues with disclosure today are mostly relevant to high value commercial cases; the Law Society suggests that the pilot should only apply to "complex cases of over £500,000".

Disclosure do's and don'ts

The draft PD introduces "Disclosure Duties" on the parties, including:

• to take reasonable steps to preserve any relevant documents in its control;
• to disclose known adverse documents, irrespective of whether an order to do so is made (unless they are privileged);
• to act honestly in relation to the disclosure process; and
• to avoid 'document dumping' i.e. providing irrelevant documents.

Further "Disclosure Duties" are also imposed on the parties' legal representatives:

• to take all reasonable steps to assist and cause the party to comply with its Disclosure Duties;
• to liaise and cooperate with the other parties’ lawyers to promote the reliable, efficient and cost effective conduct of disclosure, including the use of technology; and
• 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.

Importantly, failure to comply with these duties and any orders entitles the Court to apply express sanctions including adjournment of hearings and adverse orders for costs.