Having reviewed further feedback on the operation of the Disclosure Pilot (“the Pilot”) set out in Practice Direction 51U (“PD51U”) of the Civil Procedure Rules (“CPR”), the Disclosure Working Group (“DWG”) has proposed some additional changes.

Joseph Rossello, a senior associate in our Commercial Litigation department, who has a keen interest in disclosure and litigation technology, considers some of the changes and sets out his thoughts on how they will work.

 

When do the changes commence?

Some changes commenced on 1 October 2021.

  • The Pilot is extended until 31 December 2022. The DWG explains that the extension is “to enable the amendments to bed down and to provide an opportunity to make further improvements to the scheme based on any further feedback received”; and
  • The previously approved rewording of paragraph 9.2 clarifies that disclosure of all known adverse documents must occur within 60 days of the first Case Management Conference (“CMC”) in circumstances where Extended Disclosure has not been ordered. Further, a Disclosure Certificate must be filed to certify that this has been done.

The remaining proposed amendments to the Disclosure Pilot are approved in principle by the Civil Procedure Rules Committee and are expected, subject to ministerial approval, to commence on 1 November 2021.

 

‘Less Complex Claims’

One innovative change is the creation of a separate, simplified disclosure regime for ‘Less Complex Claims’. This new regime is set out in a new Appendix 5. A Less Complex Claim is defined in paragraph 3 of Appendix 5 as a claim “that, by its nature, value, complexity, and the likely volume of Extended Disclosure, may not benefit from the full procedure set out in the main body PD51U”. Suppose a claim is for less than £500,000. In that case, unless the nature, complexity and likely volume of Extended Disclosure indicate to the contrary, the claim should be treated as a Less Complex Claim.

However, even if the claim is for more than £500,000, the Less Complex Claim procedure could be appropriate if the nature, complexity and likely volume of Extended Disclosure mean that it works for such a matter.

One can see where this may occur. For example, declaratory relief is sought (irrespective of the claim amount), and a simplified approach to disclosure is more appropriate than following the “default” position under the current regime.

The main differences between Less Complex Claims and the main provisions of the Pilot are:

  • Extended Disclosure is limited to only Models A, B or D.
  • If only Models A or B are adopted, there is no need to complete a Disclosure Review Document or identify Issues for Disclosure.
  • If Model D is sought, the List of Issues for Disclosure must be brief and should not exceed five issues. In addition, there should not be any sub-issues that would otherwise increase the length and complexity of the List of Issues for Disclosure.
  • A simplified form of Disclosure Review Document (“DRD”) is used, set out in Appendix 6.
  • Guidance on completing the simplified DRD is set out in Appendix 7.

Having a simplified approach to disclosure that limits the number of issues and has a simplified DRD should make the Pilot more workable and less onerous in many cases. Practitioners should welcome these changes.

 

Multi-party cases

Dealing with disclosure in multi-party cases under the Pilot is challenging. It is not easy having to manage complicated (and often lengthy) DRDs, endeavouring to encapsulate everything into a single document, and then addressing the needs of many different parties with different disclosure requirements.

While the Pilot would ordinarily apply to these matters, limited changes are proposed that enable a bespoke regime rather than the “default” for these matters:

  • Empowering the court to order a bespoke timetable and procedure to meet the needs of the multi-party case (paragraph 1.12);
  • Enabling the parties to make an application under paragraph 1.12 to request that the court order a bespoke timetable and procedure to meet the needs of the multi-party case, while recognising that the Pilot remains the default position (paragraph 7.11); and
  • Encouraging the parties to discuss and agree whether it is appropriate for all the disclosing party’s documents to be given to all the other parties or only some. If the parties cannot agree, they may seek Disclosure Guidance from the court or apply to the court for directions (paragraph 13.5).

I am pleased to see that the changes relating to multi-party cases are recognised and are non-prescriptive. Using the Pilot as a framework and adopting a disclosure process that works for your matter should be encouraged. However, utilising a bespoke solution for disclosure should not be limited to multi-party cases. Parties should seek a bespoke disclosure solution from the court that works best for their case.

The Pilot intends to encourage parties to engage with the disclosure process far more than they did under Part 31 of the CPR. That being the case, I would be surprised if the court does not endorse a bespoke disclosure arrangement in other matters, primarily where the parties have engaged with the disclosure process and identified a workable solution for their matter.

 

The models

It always puzzled me that after agreeing to use a variety of Model C and Model D disclosure for most Issues for Disclosure, all the collected documents are then thrown in together and may be reviewed without any reference to the model applied. In my view, Model C should relate to disclosure of either specific documents or particular categories documents that are usually collated together or could easily be collated (e.g. bank statements, invoices, meeting minutes, and the like). Therefore, Model C should not require an extensive search of documents.

I have often seen lawyers trying to shoehorn a search for emails into a Model C request that may have been used to avoid relying on Model D disclosure. This was either to limit the other side complaining that the disclosure sought was too broad and to reduce disagreement about the models used for tactical reasons, or because practitioners expected Model D disclosure to be sparingly ordered.

The proposed changes call for a moderation of the number of different models used and how they are applied to the Issues for Disclosure to enable the disclosure process to be more practical to avoid the scenario I mention above. Paragraph 8.3 states that the court will rarely require different models for the same set or repository of documents to reduce undue complexity.

Does this mean that parties will now rely on more Model D requests to streamline the disclosure process? I can see that practitioners would welcome a move towards something more like standard disclosure under Part 31 CPR. Such a move would reduce the amount of time taken to argue about using Model C or D, which can be cynically tactical in any event. However, it doesn’t mean that Model D becomes the default position. There is no reason not to consider using other models, if it is appropriate to do so.

Will it reduce the “overuse” of Model C requests? I expect practitioners to become more comfortable agreeing to use Model D or other models for disclosure once they accept that the models become less relevant once you begin to search through a single repository of documents for disclosure. Additionally, parties should not hide behind Model C as somehow creating a lower threshold for disclosing documents that might otherwise assist the court to resolve the issues in the case.

Model C has been renamed to “Disclosure of particular documents or narrow classes of documents”. A claimant proposing Model C for any Issue for Disclosure should, using Section 1B of the DRD, identify the particular documents or define the narrow class of documents it seeks.

Looking at these changes, my view is that Model C should be approached more like how I describe it above.

The rules around the disclosure of Narrative Documents have been made more practical. While the court may order whether parties include or exclude Narrative Documents, parties are encouraged to take reasonable steps to exclude these documents in the absence of an order. Documents can be excluded where it is reasonable or proportionate and reduce the other side’s volume and cost of review. The DWG’s press release states that the changes are intended to reduce the expense of excluding documents rather than what is incurred leaving them in. Hopefully, that is how it works in practice.

 

List of Issues for Disclosure

Amendments are proposed to Paragraph 7.2 to reduce the burden of preparing Lists of Issues for Disclosure. The changes include:

  • Where an agreed list of issues for trial has already been agreed upon and the parties agree that it is suitable (with or without adaptation) to be used for disclosure, that should be set out as the draft List of Issues for Disclosure in Section 1A of the DRD.
  • Requiring the claimant to identify for each Issue for Disclosure which Model of Extended Disclosure it proposes for each party when drafting section 1B of the DRD. For example, if Model C is suggested for any particular issue, the claimant must set out the specific documents or narrow class of documents it proposes should be searched.
  • Enabling the defendant to prepare the List of Issues for Disclosure and identify the models for disclosure if the claimant fails to prepare and serve a list within 42 days of the close of statements of case.

Additionally, there is a requirement that the List of Issues for Disclosure is as concise as possible. Parties must consider areas of common ground but should only include the key issues in dispute in the list.

Suppose the parties cannot agree on the List of Issues for Disclosure. In that case, they should consider seeking Disclosure Guidance from the court at an early stage to resolve the dispute in advance of the CMC.

Most of these changes appear to favour parties engaged in a constructive, cooperative discussion about undertaking disclosure. It also enables a defendant to advance matters where the claimant delays dealing with its obligations under the Pilot. Finally, perhaps, these changes will encourage parties to take a less tactical approach in negotiating an agreed List of Issues for Disclosure, and ultimately the models to be adopted for disclosure.

 

Disclosure Guidance

Paragraph 11.1 of PD51U has been redrafted. It now more clearly states that a single party can approach the court for guidance instead of making a joint application. Hopefully, this means that parties can seek a non-binding determination from the court rather than being bogged down in protracted correspondence. Further, the matter can be dealt with on the papers to avoid a hearing and, possibly more importantly, avoid the costs of attending a hearing.

This does not mean that a party cannot apply “in the traditional way” to the court to deal with any disclosure issues. Instead, a new paragraph 6A empowers the court to determine any disclosure issues by providing Disclosure Guidance under Paragraph 11 or by a party making an application under Part 23 of the CPR.

The court can order a variation of the time to complete any step in the disclosure process. However, if parties can agree to vary a timeframe and if the date for the CMC is not affected, the parties do not need to seek the court’s approval.

 

Conclusion

While many practitioners have endorsed the Pilot, there are some who feel that the obligations imposed are onerous or increase costs. There are inevitably areas for further refinement to ensure that the Pilot works more effectively in more matters. This can only come from seeing how the Pilot works in practice.   Perhaps, some of these concerns will be allayed once they implement these new changes.

The Pilot is a framework and sets out the principles for disclosure. Nothing prevents parties from agreeing on or requesting the court to direct the parties to adopt a more bespoke arrangement for disclosure where necessary. Making the most out of disclosure requires you to make the most out of the Pilot.

 

 


 

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