2018年10月8日
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.
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.
The DWG's diagnosis is clear: the current disclosure rules in CPR 31 are outdated. Why outdated?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.
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:
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.
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:
The draft PD introduces "Disclosure Duties" on the parties, including:
Further "Disclosure Duties" are also imposed on the parties' legal representatives:
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.
Bucknell v Alchemy Estates (Holywell) Ltd [2023] EWHC 683 (Ch)