On 1 November 2021 proposed changes to the Disclosure Pilot Scheme came into effect. Having already confirmed the Pilot’s extension to 31 December 2022 and clarified that disclosure of all known adverse documents must occur within 60 days of the first Case Management Conference in circumstances where Extended Disclosure has not been ordered, the Disclosure Working Group (DWG) introduced a new set of changes which have secured ministerial approval and now come into effect.
In our previous article on the Disclosure Pilot, we noted that innovative changes had been introduced which should be welcomed by practitioners. Natalie Osafo, a Senior Associate in Stewarts’ Commercial Litigation and Insolvency and Asset Recovery teams and member of the Disclosure Working Group joined Ed Crosse and David Bridge of Simmons and Simmons in a podcast to discuss the most recent changes made in November 2021.
Why has the Pilot been extended?
The DWG has extended the Disclosure Pilot “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”. It has always been described as a ‘living pilot’, and changes were first introduced in April 2021.
Sir Geoffrey Vos, the Chancellor of the High Court, requested further feedback on the Pilot including proposals in relation to key areas that had caused challenges in practice. The five main points to address were:
- How can the Pilot better address less complex claims?
- Can more guidance be available on how to frame lists of issues for disclosure?
- Misuse of Model C disclosure and the practical challenges relating to narrative documents for Model D disclosure
- Operation of the Pilot for multi-party cases
- Disclosure guidance hearings not being used, or not being used correctly
Less complex claims
Natalie noted that one of the intentions of the Pilot was to reduce the overall cost of disclosure. However, in practice parties found that for lower value cases in particular the process was too onerous and was generating disproportionate costs as a result. To seek to address this, a new streamlined version of the Pilot has been introduced in the form of Appendices 5 of Practice Direction 51U, which can be applied to less complex claims.
The definition of a less complex claim is multifaceted with no set monetary threshold. The DWG agreed to leave some space for interpretation, with a presumption that if a claim is valued at £500k or less it will be a less complex claim unless other factors indicate otherwise.
Lists of issues for disclosure
Common pitfalls in listing issues for disclosure include an overly granular approach, too many issues being used, issues framed as issues of law rather than issues of disclosure, and issues framed in an overly contentious way.
Revisions to the Pilot have clarified that issues for disclosure are not issues for trial, and that they need to be concise. For a less complex claim, a maximum of five issues for disclosure can be raised, though the ability to include sub-issues remains. Only disclosure Models A (known adverse documents), B (key documents relied upon) and D (search-based disclosure) are available.
In some cases parties have found a lot of headroom in the existing timetable to agree upon the list of issues for disclosure and disclosure models, but have taken longer than needed in certain cases to comply with the process. The new Pilot seeks to address this by having the claimant provide the opposing party with a more complete picture of the form of disclosure it is proposing.
Model C requests
The DWG has tried to address the issue of parties producing Model C requests – (for particular/narrow categories of documents) so complex they were effectively Model D requests. New wording has clarified that if parties cannot identify the specific category of a document, then Model D should be used. Using a request based approach to try and interrogate numerous complicated requests across a wide range of data does not sit well with many forms of technology.
In the Pilot’s initial efforts to encourage people to think about Model C as an alternative to Model D, too many have now been drawn to Model C when they should be using Model D or Model E. The new version of the Pilot has deleted a sentence in the practice direction and indicated that Model C requests should be limited in number and focused in scope, and that Model C should not be used in a tactical or oppressive way. The Pilot intends that Model C should require little if any searching when providing disclosure, as it works well for well-defined categories of documents.
Complex multi-party cases
In complex cases involving multiple parties, pulling everything needed for a case into a single disclosure review document is often impractical. It is clear that a multi-party case will need proactive case management by the docketed judge. The DWG has therefore included in the practice direction that in a multi-party case, those involved need not just follow the Pilot, but should apply for specific directions where necessary.
Additional new wording in the practice direction suggests that in a multi-party case, thought should be given in advance of which documents need to be produced to which claimant(s)/defendant(s). In most cases, it may not be necessary or appropriate for every party to receive every document and providing all parties with all documents could result in a disproportionate document review burden.
Disclosure Guidance Hearings
These hearings were newly introduced by the Pilot Scheme in 2019, but have not been used as much as expected. In instances where they have, meetings have effectively become long, contentious hearings similar to case management conferences.
In the amendments proposed to the Pilot, parties are now able to apply for guidance to be provided by the court in correspondence without a hearing. The time allocated for disclosure guidance has also been increased from 30 minutes to up to an hour, alongside clarification that parties applying for any form of order requires an application notice.
The DWG is continuing to engage with the profession and to consider whether any further refinements should be proposed for the Pilot.
Natalie comments: “It seems unlikely that when the Pilot ends, the Business and Property Courts will simply revert back to the old CPR 31 rule which had been deemed unfit for purpose. This is especially true in this modern age, where cases involve gargantuan amounts of data. Refining the Pilot is more likely to be seen as the way forward, rather than resuming the use of Part 31.”
If you have any questions regarding the Disclosure Pilot Scheme, please contact Natalie Osafo.
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