A change in professional attitudes and a cultural shift was thought necessary to address the perceived defects in the disclosure process under Part 31 of the Civil Procedure Rules (CPR). A new set of rules governing disclosure was introduced on 1 January 2019, known as the Disclosure Pilot Scheme (the DPS), which is being implemented through Practice Direction (PD) 51U.
What is the Disclosure Pilot Scheme?
The DPS is a pilot scheme dealing with disclosure of ‘documents’ in civil proceedings. In litigation, the purpose of disclosure is to make available evidence which either supports or undermines the respective parties’ cases.
Disclosure is a crucial stage in litigation which enables both parties to assess the strengths and weaknesses of the other party’s case and consequently the potential commercial risks going forward. Further details of a party’s disclosure duties can be found here in our website.
The DPS implemented a complex set of rules and requires disclosure to start much earlier; it represented a significant shift in the approach to disclosure.
Application of the Pilot Scheme
The pilot applies to new and existing proceedings in the Business and Property Courts across England and Wales, including the Commercial Court but with notable exceptions, such as the Admiralty Court.
The scope of its application to cases commenced before 1 January 2019 has recently been clarified in the case of UTB LLC v Sheffield United which confirms that the pilot will apply to all subsisting proceedings in the Business and Property Courts even where the claim was issued and an order for standard disclosure was made prior to 1 January 2019 under the old CPR rules.
What were the changes?
The DPS introduced codified disclosure duties and sanctions for failing to discharge them.
The disclosure duties
The disclosure duties extend to both parties and their legal representatives. They must:
- Take reasonable steps to preserve documents that may be relevant to any issue in the proceedings.
- Take reasonable steps to avoid disclosing irrelevant documents.
- Disclose known adverse documents, other than privileged documents.
- Comply with any disclosure order.
- Search for documents in a responsible manner and act honestly when reviewing the documents
Known adverse documents. The parties must disclosure adverse documents, which may be documents that:
- A party is actually aware of its existence;
- Any adverse documents; and
- Are within its control.
Irrelevant documents. The duty to use reasonable efforts to avoid disclosing irrelevant documents.
Preserving documents. The duty to preserve documents applies as soon as a person knows that it is, or may become, party to proceedings that have commenced or may be commenced. Accordingly, a person must take reasonable steps to:
- Preserve relevant documents;
- Suspend deletion and destruction processes; and
- Give employees and former employees written notice identifying documents to be preserved.
Judicial Update on Operation of the DPS
An Update on the operation of the Disclosure Pilot Scheme was published on 22 September 2020 by the Judiciary. The DPS is set to continue until the end of 2021 following a recent extension.
The update includes publication of the Third Interim Report on the pilot by Professor Rachael Mulheron of QMUL. Practitioners were asked to complete questionnaires at the end of 2019 and the Third Interim Report on the analyses the 71 responses received.
Upon an analysis of the report, the respondents’ views on the overall outcomes under the pilot seem to be mostly negative:
- 85% say the pilot has not saved costs overall (4% say it has, 10% can’t say/too early)
- 42% say it has made disclosure less accurate (16% say more accurate, 42% can’t say/too early)
- 71% say it has increased burdens on the courts (2% say decreased burdens, 27% can’t say/too early)
- 78% say it has not brought about a culture change (6% say it has, 16% can’t say/too early)
What are the proposed changes?
A sub-group of the DWG has carefully considered the drafting points that arise from feedback in the Third Report and elsewhere and has prepared revised versions of PD51U for consideration by the Civil Procedure Rules Committee. Some of the main proposals are as follows:
- Modifying the requirements of and exemptions to Initial Disclosure;
- Clarifying when the default obligation to disclose known adverse documents arises;
- Modifying the obligation to serve document preservation notices on current and former employees;
- Conforming the Disclosure Review Document (“DRD”) with the PD in relation to Model C disclosure;
- Clarify issues relating to the use of Disclosure Guidance Hearings;
- Confining the obligation to complete the DRD to only those cases where the parties agree that search-based Extended Disclosure Models are required (i.e. Models C, D and/or E);
- Removing the obligation to produce a List of Issues for Disclosure and the DRD if both parties have agreed that Extended Disclosure is to be restricted to non-search based models A and/or B.
The Civil Procedure Rules Committee (CPRC) has recently been asked to approve a one-year extension of the pilot until the end of 2021 and will be asked to consider the revisions proposed by the sub-group. It should be noted that until these revisions are approved by the CPRC, they have no formal status.
Instructing our disclosure specialist litigation lawyers
We ensure that we provide the best possible outcome for our clients by conducting in depth investigation and research into the realistic prospects of a case before selecting the appropriate course of action in order to reduce time and expense. We can advise you from the outset and throughout the disclosure process to include pre-action disclosure from parties to the proceedings in addition to non parties.
Liability for costs is always an issue in litigation and based on our extensive litigation experience we provide our clients with as much strategic, practical as well as carefully considered legal advice in order to ensure minimum risk in respect of costs. Where appropriate we encourage the use of alternative dispute resolution (such as mediation and without prejudice negotiation) and our lawyer’s negotiation skills are first class. If early settlement at advantageous terms is not possible, we are extremely experienced and capable at navigating our clients through the litigation process.
LIMITATION ACT 1980 – WARNING
The Limitation Act 1980 sets out strict statutory deadlines within which you must bring litigation claims. Your legal rights will become irreversibly time-barred if you fail to take legal action (or defend a claim on time). Therefore, you should seek specific legal advice about your legal dispute at the very first opportunity so that you understand the time you have left. Failure to take advice or delay in taking action can be fatal to your prospects of success.