Further changes to the Disclosure Pilot Scheme announced

The Disclosure Pilot Scheme (DPS), which introduced major changes to the way parties conduct disclosure from 1 January 2019, was always a "living pilot", with changes expected to be made to it during the course of its existence. Following input from a number of professional associations in response to an invitation from the Chancellor in February 2021, a round of changes to the DPS will take effect on 1 November 2021. These changes are more extensive than those that took place in April 2021.

What is staying the same?

The overall structure of the disclosure pilot under the DPS remains the same:

• Duties on parties and advisors to preserve documents, co-operate and to act honestly and conscientiously

• Duty to provide Known Adverse Documents whatever disclosure order is made

• Disclosure Guidance Hearings available where parties cannot agree approach

• Initial Disclosure given with pleadings

• Where Extended Disclosure sought:

  • Issues for Disclosure identified and agreed between the parties

  • Models for Disclosure agreed or ordered for each Issue

  • Completion of the Disclosure Review Document (DRD)

  • Parties to be transparent about method of review and agree it in advance

What is changing?

A simpler regime for Less Complex Claims

The DPS is widely felt to be cumbersome in lower value and less complex commercial cases, where the effort spent in tailoring a disclosure order may be disproportionate. To address this, a new Appendix 5 contains a simplified scheme for any claim with a value of £500,000 or less that is not unusually complex: a "Less Complex Claim".  This involves using a much shorter version of the DRD and a choice between models A, B or D only.  Model C requests for specific documents or narrow categories of documents, along with Section 1B of the DRD, will therefore not be used in Less Complex Claims.

A list of Issues for Disclosure is still required, but with an effective limit of 5 issues, to "be drafted at a high level of abstraction" and without reference to any sub-issues. The appendix notes that parties should always consider whether a dispute or claim is suitable for the Shorter Trials Scheme, rather than being treated as a Less Complex Claim.

Flexibility for multi-party claims

Completing the DRD in multi-party claims has proved difficult, particularly where certain Issues for Disclosure are relevant to only some of the parties or only certain parties will have documents that are relevant to an issue. The matrix of Issues for Disclosure, Models for Disclosure and search parameters can become very complex in multi-party cases.

The amended rules do not seek to prescribe a way in which to manage disclosure in multi-party cases, recognising the range of circumstances that may occur, including claims for mass redress and parties joined as Part 20 defendants. Instead, the parties can apply to the court for an order for a bespoke timetable and procedure. It is expected that any such procedure will take the DPS as its starting point, but amend the requirements to suit the case. Acknowledging feedback from practitioners, a new Paragraph 13.5 prescribes that the parties should discuss and seek to agree whether it is appropriate for all of a disclosing party's documents to be given to all, or just some, of the other parties. Multiple parties involved in one dispute should always look at the matters in issue as between particular parties in order to ascertain (and agree) the most proportionate and sensible approach to disclosure.

Use of Model C

Model C disclosure, where a party requests that another party search for particular documents or narrow categories of documents, has caused difficulties in practice. Many parties have opted to make Model C requests in order to appear restrained and proportionate in their approach to disclosure, but then made each request very wide in scope and really no different from Model D. The Disclosure Working Group have addressed this in the amendments:

• The title of Model C is amended to better reflect its intention: "Disclosure of particular documents or narrow classes of documents".

• In rule 10, it now states that where Model C is proposed for any Issue for Disclosure, the requests should be "limited in number, focused in scope and concise so that the responding party may be clear as to the particular document(s) or narrow classes of document" for which it is being asked to search.

This reflects the fact that Model C has been misused, having been designed for use where a party can readily identify a defined class of documents that it wishes to see. Obvious examples are documents such as invoices, minutes of meetings and customer records.  There is now an express statement that "[b]road and wide-ranging formulations" such as "any or all documents relating to..." should not be used. Model C requests should not be used in a "tactical or oppressive way."

Other amendments

There are numerous small drafting changes made throughout the Practice Direction. Many of these are aimed at clarifying issues which have arisen, such as the court's power to make orders on any aspect of the disclosure process and the parties' right to apply for such orders as well as guidance. Others aim to close gaps in the rules as to what should happen in particular circumstances, such as where a claimant fails to serve a List of Issues for Disclosure within 42 days of the close of pleadings, an amendment now allowing a defendant to produce one in these circumstances and serve it on the other parties.

Clarificatory changes emphasise that the Disclosure Review Document (DRD) can (and should) be modified to reflect the circumstances of the case, and changes have been made to simplify and clarify the process for making Model C requests in the DRD.  The DRD is a vessel by which the parties identify and agree the scope of disclosure, and record it for the Court. It should be used flexibly, and should not delay, complicate or increase the costs of the process.

The requirement to provide a description of any searches carried out by the time of Initial Disclosure has been removed. The original idea behind this was to prevent searches being ordered for Extended Disclosure which were duplicative of work already done, but parties struggled to identify the appropriate level of detail for this description and what was provided was often so vague as to be of no use.

A statement is included that it is important that the parties consider what types of documents and sources of documents there are or may be, in order that a realistic approach to disclosure can be adopted. This reflects judicial commentary in cases such as McParland & Partners Limited v Whiteheadand Anan Kasei v Neo Chemicals and Oxides where the parties had focused entirely on the pleadings and not on the document landscape.

It is clarified that the list of Issues for Disclosure is not a list of every issue in the case and does not bind a party at trial. This change reflects the "over-lawyering" of these lists, which are often unworkably long as parties seek to ensure no possible issue is excluded. An amendment makes clear that where there are difficulties agreeing the List of Issues for Disclosure the parties should seek guidance from the court via a Disclosure Guidance Hearing at an early stage.

Future of the Pilot Scheme

Despite some criticism of the Pilot Scheme, the working group also received a lot of constructive feedback and suggestions about how it could be improved; it appears that the working group has embraced that feedback.  Separately the CPRC has extended the Pilot by a year to January 2022, so there remains a decent period of time for users to continue to provide further feedback.   It seems unlikely that in 2022 the Business and Property Courts will revert to the old Part 31. The old rule had effectively been found to be unfit for purpose in the modern age of electronic data, so refining the Pilot Scheme is more likely to be seen as the way forward than resuming the use of Part 31.

The Pilot Scheme has already been extended for a year. It is notable that reported cases are dealing with later and later stages of the process as parties work their way through it. Further amendments are a real possibility before any rule change becomes permanent and the working group remain open to feedback.