Disclosure Pilot to be extended for a further year and the procedures streamlined

The Disclosure Working Group has today published an Update on the operation of the Disclosure Pilot Scheme, which has been running in the Business and Property Courts since the beginning of 2019 under Practice Direction (PD) 51U.

The update notes that the Disclosure Pilot has been extended to the end of 2022, as approved by the Civil Procedure Rule Committee (CPRC) at a recent meeting, and outlines a number of proposed revisions to PD 51U in response to a request for feedback from court users. These have been approved in principle by the CPRC but remain subject to final approval by both the CPRC and the Justice Minister. The timing is not entirely clear from the update, but we expect the aim is to implement the revisions this autumn. The key changes are outlined below.

Agreeing issues for disclosure and disclosure models: There is a streamlined approach to proposing and agreeing lists of issues for disclosure and associated disclosure models, which should greatly increase the efficiency of the process. This means that the claimant identifies its proposed disclosure models for each of the issues for disclosure it proposes, including how any Model C disclosure should be defined, at the same time as putting forward its draft list of issues. The other parties then comment on all of the proposals. This contrasts with the current approach which envisages the parties agreeing the list of issues and then starting to discuss the appropriate disclosure model for each issue.

Model C disclosure: There are amendments to "discourage excess" where Model C disclosure is used, making it clear for instance that Model C proposals should be "limited in number, focused in scope and concise" and that broad and wide-ranging formulations such as “any or all documents relating to...” should not be used. It also appears that it is now open to parties to propose how Model C disclosure should be defined for their own documents as well as an opponent's documents, whereas the previous wording tended to suggest that it was for a party to put forward "requests" for specific documents or categories from its opponent. So for example Model C disclosure has been renamed as "Disclosure of particular documents or narrow classes of documents" rather than "Request-led search-based disclosure".

Multi-party cases: Although the pilot continues to apply to multi-party cases, there is now express recognition that disclosure in such claims is likely to need a bespoke approach from the court. The new draft PD 51U provides that "the court may order that the timetable and procedure is to be varied so as to provide a bespoke timetable and procedure to meet the needs of the individual multi-party case". Parties are encouraged to apply for such an order at an early stage. The new draft also states that parties to multi-party cases should discuss and seek to agree whether it is appropriate for all of the disclosing party's documents to be given to all of the other parties or to some only.

Less complex claims: There is a new separate regime within the pilot for "Less Complex Claims", ie those which by virtue of their nature, value, complexity and the likely volume of disclosure may not benefit from the full pilot procedure. There is a presumption that a claim valued at less than £500,000 should be treated as a Less Complex Claim, unless another factor indicates to the contrary.

Disclosure guidance: There is now less emphasis on the use of hearings in order for the court to give guidance on disclosure issues. Disclosure Guidance Hearings are an innovation of the pilot but have not been widely used. The new draft PD makes it clear that the court can also control the disclosure process in the traditional way, by a party issuing an application notice to raise an issue for determination by the court.