The Disclosure Pilot Scheme 2019

With the impending compulsory disclosure pilot scheme coming into effect from the 1st January 2019 for all matters heard before the Business and Property Courts of England & Wales, it would be useful to have an overview of the proposed pilot scheme and the effect this will have on case management and progression.

Disclosure has always presented a problem to practitioners and client’s alike. The essence of the concept of Disclosure is that documents relating to a dispute, whether they support or adversely effect your case, should be produced to the other side (unless they are protected by privilege).

A document is anything in which information of any kind is recorded. In the electronic age, this includes e-mail, voicemail, text messages, online posts, tweets, diaries, video footage and the like. Part of the current problem presented by disclosure is the sheer volume of materials that constitute documents, the cost of searching and obtaining those documents, the cost of producing copies to the other side, and the cost of reviewing and analysing these documents.

Not only that, but the duty of disclosure is a continuing process, and thus it is never really discharged until proceedings are concluded. Documents can come to light at any point during proceedings and if they are relevant in regards to disclosure, then they must be disclosed. This is highlighted in the Civil Procedure Rules under CPR 31.11.

Currently, the model of standard disclosure is the norm. Under CPR 31.6 standard disclosure requires a party to disclose:

  1. Documents on which he relies; and
  2. The documents which-
  1. Adversely affect his own case;
  2. Adversely affect another party’s case; or
  3. Support another party’s case; and
  1. The documents which he is required to disclose by a relevant practice direction.

Standard disclosure in itself provides for a very wide remit of documentation to be disclosed and with that comes significant time and expense in searching, locating, and producing the documentation. In certain cases, disclosure can extend to thousands of documents which places a definite cost and time burden on the parties. Lord Neuberger in his 2017 Hamlyn Lecture at Oxford described the majority of disclosure as futile. Given that the overriding objective of the CPR rules is to enable cases to be deal with justly and at a proportionate cost, the current model of disclosure appears to be at antagonistic to this.

Disclosure pilot scheme business and property courts

Thus, the Disclosure Pilot scheme has been introduced in an effort to try and address this issue and streamline the disclosure process. This pilot scheme will apply to all cases in the Business and Property Courts, and will come into effect from the 1st January 2019. The pilot is intended to run for 2 years and the expectation is that it will lead to wider reforms in disclosure.

It is probable that some Claimant’s will evade the pilot scheme by issuing in Courts where the pilot scheme will not apply, however, Defendant’s will be left in the dark as to whether they are subject to the pilot until proceedings have already commenced. Therefore, it is prudent at this stage whether proceedings are contemplated or intended, to consider the disclosure pilot scheme and act as if it will apply.

There is an incumbent duty on parties to a dispute to preserve documentation which may be relevant to disclosure. Further, there is a duty on solicitors to vet the documentation produced by the client to ensure no relevant documentation has been omitted. Disclosure can often be a finicky and time-consuming process, so whether a dispute is already underway or is contemplated or expected, our solicitors will be able to discuss the issue of disclosure with you and advise you in relation to your duties to preserve and produce documentation. We will also advise you on the documentation that you may be expected to disclose and whether any such disclosure may be protected by a form of privilege.

Perhaps one of the more material changes brought in by the pilot scheme is the principles upon which disclosure will now be based.

What is traditionally known as Standard Disclosure (and is currently the most common form of disclosure due to it being the ‘default’ position) has now been replaced by ‘Model D’ and the practice direction states that it should not be ordered in every case and will not be regarded as the default form of disclosure.

The other proposed models of disclosure range from ‘Model A’ being no order for disclosure, to ‘Model E’ being the wide search-based disclosure which will be the most extensive and expensive method.

There is also a duty on the parties and their legal representation, to cooperate with each other so as to promote the reliable, efficient and cost-effective conduct of disclosure. Initial Disclosure will also be given with statements of case and will typically contain key documents which are relied on by the disclosing party and are necessary for other parties to understand the case that has been put to them. In certain cases, initial disclosure may preclude the need for any further disclosure which means in some cases this will narrow the issues in dispute at a much earlier stage and expedite settlement saving time and money.

The new pilot disclosure scheme will definitely have an affect on costs and case progression but to what extent is still to be seen. There is an evident encouragement for parties to a dispute to cooperate and work together in working through the disclosure process, with a view to narrowing the issues in dispute at an early stage in proceedings. Front loading of costs will be a likely result although the pilot scheme believes money will be saved due to early clarification of issues in a case.

Disclosure can be quite an intricate and long-winded area of proceedings, and as such it is best to prepare for disclosure as soon as practicable.

If you or your business is currently in a litigious dispute, or anticipate a matter may turn litigious, Asim Arshad will be happy to discuss the matter at hand. Please call 01444 460131 or e-mail aa@bennettoakley.co.uk

October 2018