Disputes Quick Read: Amendments to the Disclosure Pilot Scheme – a step in the right direction

Quick read

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.