Disputes Quick Read: Disclosure Pilot Scheme – here to stay

Quick read

The pilot scheme was approved on 15 July 2022 and will now be known as Practice Direction 57AD. It will come into force on 1 October 2022 and will apply to existing and new proceedings in the Business and Property Courts of England and Wales and the Business and Property Courts in Birmingham, Bristol, Cardiff, Leeds, Liverpool, Manchester and Newcastle. This Practice Direction is substantially in the form of (and replaces) PD51U.

We have previously reported on the Disclosure Pilot Scheme which was first introduced 1 January 2019 as a pilot for a two year period until 31 December 2021, subsequently extended to 31 December 2022. At the beginning of the year we reported on some of the key Disclosure Pilot Scheme court decisions of 2021. Those decisions and the continuing consultation with the judiciary and the legal profession have led to changes and refinements to the Practice Direction text and some more significant changes to the original scheme. These include the creation of a system for "less Complex Claims" and recognition that disclosure in multi-party claims needs a bespoke approach for each case.

Comment

It was clear, given the strong interest from the legal community and clients in reform of the disclosure process, that the pilot would be here to stay. One of the main aims of the new process was to reduce costs. Unfortunately, despite efforts on the part of the Disclosure Pilot Working Party, it has not proved possible to compare costs under the pilot with those incurred outside of that scheme and there is no data available to evidence whether there is a saving. It is doubtful whether the scheme will significantly impact the cost of disclosure in complex, document-heavy cases.

Notwithstanding its potential impact on costs, the focus on early document collation and review - both in relation to Initial Disclosure and the completion of the Disclosure Review Document – anecdotally appears to have streamlined less complex matters. The early focus on disclosure under the pilot and now Practice Direction supports the judiciary's increased push for parties to engage meaningfully in early ADR.