The Disclosure Pilot Scheme (Practice Direction 51U of the Civil Procedure Rules (“CPR”)) is about to begin in the Business and Property Courts from 1st January 2019.
The Pilot will not apply to cases in which an order for disclosure has been made before that date, unless such order is varied or set aside. In all other cases in the Business and Property Courts, the Disclosure Pilot Scheme will be in force.
The Disclosure Pilot Scheme
The new rules provide in summary for:
- “initial disclosure” of the key documents a party relies on with their statements of case; and then
- for a Disclosure Review Document (“DRD”) to be completed where parties want further or “extended disclosure”. They can ask for a variety of options available, described as Models B to E. The models range from limited disclosure, request-led search based disclosure, narrow search based disclosure and wide search based disclosure.
Parties must within 28 days of the final statement of case indicate in writing whether they are likely to request extended disclosure. The parties must then discuss and make proposals for additional or alternative disclosure. The DRD is to be prepared and refer to any disagreement between the parties. The DRD will replace the Disclosure Report and Electronic Documents Questionnaire and it will provide Judges with all the information they require at the case management conference (“CMC”) to make necessary decisions relating to disclosure in one document.
In preparing the DRD at least 14 days before the CMC, the parties must also answer questions about the data within their control and exchange the same with each other. Discussions must continue between the parties to seek to resolve any disagreements over the scope of the extended disclosure.
The completed DRD must be filed at Court at least five days before the CMC. The Judge will decide any issues that remain and make the appropriate order for disclosure after considering which disclosure models should apply.
The DRD must be submitted to the Court by the claimant of a case. The DRD must be sent to the defendant within 42 days of the service of the final statement of case (except in the case where the claimant is acting in person and the defendant is not, in which the Court may request the lawyers of the defendant to lead in the preparation of the list of issues for disclosure).
The existing provisions of the CPR on pre-action disclosure, non-party disclosure and the subsequent use of disclosed documents remain the same. There is a duty on parties and their lawyers to preserve documents and avoid providing documents that are not relevant to the facts of a case.
It will be interesting to monitor the effect of the new rules and whether this latest attempt to make the disclosure process more cost and time efficient will work.