Disclosure Pilot Scheme – A Proportionate Approach in the Business and Property Courts

Philip D'Arcy, in our Dispute Resolution team, discusses the Disclosure Pilot Scheme, which aims to test a new approach to documentary disclosure in civil litigation cases.

On 1 January 2019 the Disclosure Pilot Scheme (‘the Scheme’) commenced under Civil Procedure Rule (‘CPR’) Practice Direction (‘PD’) 51U. The Scheme is in operation for two years in the Business and Property Courts of England and Wales, Birmingham, Bristol, Cardiff, Leeds, Liverpool, Manchester and Newcastle. Resultantly, the Scheme affects the specialist courts within London’s Rolls Building and the civil and family courts in the aforementioned regions.

What is the aim?

The purpose of the Scheme is to test a new approach to documentary disclosure in civil litigation cases. Underpinning the reform is a drive to achieve proportionality, whereby cases are to be dealt with “justly and at proportionate cost”. A proportionate approach to disclosure is important because it could encourage cost and time efficacy.

How does the Scheme change the court’s approach to disclosure?

Rather than amending the existing rules for disclosure and inspection of documents contained in CPR Part 31, the Scheme implements an entirely new regime with noticeable practical and cultural differences. These include:-

• A requirement to identify ‘Issues for Disclosure’;
• Rigid guidelines regarding advice to clients about their duties under the Scheme;
• A requirement to use the ‘Disclosure Review Document’;
• Introduction of ‘Disclosure Guidance Hearings’;
• The concepts of ‘Initial Disclosure’ and ‘Extended Disclosure’;
• A new approach toward disclosure of adverse documents; and
• The role of the judiciary as “gatekeepers” of the disclosure process.

What should practitioners consider?

• CPR PD 51U and the Disclosure Review Document in detail. It is important to appreciate the overhaul in procedural requirements and how the governing principles guide those requirements. In particular, familiarise yourself with the timescales involved and the requirement to cooperate as much as possible with your opponent from an early stage.
• Whether the Scheme is applicable to your case. This is likely to be where the matter is in the Business and Property Courts and the first Case Management Conference is on or after 1 January 2019.
• Be aware that, under CPR PD 51U, paragraph 5, the parties are obliged to provide an Initial Disclosure List of Documents at the same time as the statement of case. Consequently, disclosure will have to be given considerable thought right from the outset of a case. You must also confirm to the court that the client is aware of his or her disclosure obligations in relation to the statement of case.
• CPR PD 51U, paragraph 3 which outlines duties in relation to disclosure. Consider whether your client understands their duties, and if necessary, write a letter to the client advising them of the disclosure process and summarise the duties owed.
• Whether a proportionate approach is being taken. As stipulated by CPR PD 51U, paragraph 2.4, you should be satisfied that the scope of disclosure “is not wider than is reasonable and proportionate”. Consideration will, therefore, need to be given to the nature and complexity of the proceedings, the volume of documents involved, and the financial position of each party etc.

What can we expect in the future?

The Scheme is likely to evolve throughout the two year test period. CPR PD 51U, paragraph 1.2 stipulates that the Scheme is not currently applicable to the County Court, “although this may be reviewed in the course of the Pilot.” The Scheme is, therefore, being monitored and is likely to lead to permanent procedural and cultural change, not only in terms of disclosure, but throughout the civil justice system of England & Wales.

For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.