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Latest Changes to Disclosure Pilot Scheme in the Business and Property Courts of England and Wales

November 22, 2021

Over the last 18 months, the Business and Property Courts of England and Wales have been running the Disclosure Pilot Scheme. Since its inception, this scheme has undergone a series of tweaks and amendments and the latest version, which incorporates the most recent round of amendments (published by the Disclosure Working Group in July this year), came into force on 1 November 2021 under the 136th Civil Procedure Rules Practice Direction Update.

The Business and Property Courts have been running the Disclosure Pilot Scheme under Practice Direction (PD) 51U since the beginning of 2019. Since its inception, the Disclosure Pilot Scheme has aimed to make disclosure less arduous for the parties and more proportionate and tailored to the unique circumstances of each case. The Disclosure Pilot Scheme has made dramatic changes to the long-established and familiar process of disclosure, including a requirement for parties to agree a list of issues for which documents will be disclosed (usually referred to as the “list of issues for disclosure”), and for the parties to disclose documents in two stages.

The first stage is “initial” disclosure, which requires that parties disclose certain key documents when serving their statements of case. The second stage is “extended” disclosure, which occurs once pleadings have finished. This process is much more intricate than the “initial” stage and the disclosure of documents for each issue (as per the list of issues for disclosure) is governed by a menu of disclosure “Models” ranging from Model A (the most limited in scope) to Model E (the least limited in scope). The document that includes all of this information is known as the “disclosure review document” and should be completed through consensus of the parties prior to the first case management conference. The Disclosure Pilot Scheme emphasises the need for the parties to cooperate throughout the disclosure process.

BRIEF HISTORY OF THE DISCLOSURE PILOT SCHEME

The Disclosure Pilot Scheme was initially envisaged as a two-year pilot, but has since been extended twice and, following the most recent update, is due to finish at the end of 2022. It is anticipated that there will be a further consultation with court users and the judiciary before the scheme finishes.

On 6 April 2021, an initial tranche of changes to the initial practice direction (that were published in September 2020) came into effect. These changes were the result of feedback received by the Disclosure Working Group (DWG) from the judiciary and court users alike during the first consultation period.

On 29 July 2021, the DWG published an update on the operation of the Disclosure Pilot Scheme. In addition to noting the extension to the scheme itself, the update outlined a number of proposed revisions to PD 51U in response to the latest feedback received from court users. It is this latest iteration of changes that came into effect on 1 November 2021.

CHANGES TO PD 51U

Less Complex Claims

In the spirit of streamlining and proportionality, the updates to the Disclosure Pilot Scheme have created a new distinct disclosure regime for “less complex claims” that includes a simplified version of the disclosure review document. A less complex claim is defined as a claim that “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 of PD 51U.” There is a presumption that claims for less than £500,000 qualify as less complex claims unless there is a specific factor that indicates otherwise. However, even if a claim is for more than £500,000, that in itself does not disqualify the parties from using the simplified procedure if the nature, complexity, and likely volume of extended disclosure mean that it could apply to such a claim.

Agreeing Issues for Disclosure and Disclosure Models

There has been a small tweak in the process of agreeing the list of issues for disclosure and the disclosure models that should greatly increase the efficiency of the process by narrowing the scope for protracted dispute and thus helping to reduce costs. The original position was that the parties were expected to agree a list of issues for disclosure in the first instance before later negotiating the appropriate disclosure model applicable to each issue.

Under the revised rules, the claimant identifies its proposed models for disclosure at the same time that it puts forward its draft list of issues. As part of this process, the claimant is also expected to include how any Model C issues should be defined (i.e., identify the narrow categories of documents relevant to the disclosure issue for which Model C is proposed). Prior to this change, the list of issues and the relevant models were negotiated separately, which necessitated protracted, and often otherwise avoidable, correspondence.

Model C Disclosure

The danger with Model C as initially worded was that it could easily be deployed by parties to seek documents whose scope would more properly fall under Model D. The starting point of Model C disclosure is that a disclosing party is required to undertake a search for particular documents or a narrow class of documents that relate to a specific disclosure issue. Model D disclosure, however, requires a disclosing party to undertake a “proportionate and reasonable” search for documents relevant to a disclosure issue. Importantly, though, under Model D, the court will limit the scope of the search following consideration of the disclosure review document. In other words, in an effort to avoid being seen to seek very wide disclosure, a party could request the narrower Model C, but extend the categories and classes of documents sought so that, for all intents and purposes, the disclosure would amount to Model D (while simultaneously avoiding the court’s power to set limits).

The amendments to Model C disclosure are designed to “discourage excess” when Model C is proposed. Any Model C proposals should be “limited in number, focused in scope, and concise” and language that proposes disclosure of wide-ranging categories of documents such as “any or all documents relating to …” should be avoided.

Furthermore, Model C has been reworded to read as “disclosure of particular documents or narrow classes of documents.” The implication appears to be that the parties now have the option to propose how Model C disclosure should be defined for their own documents as well as for an opponent’s documents. The original wording of Model C was “request-led search-based disclosure,” which suggested that it was the responsibility of a party to submit requests for specific documents or document categories from its opponents.

Court Disclosure Guidance

The new updates continue the theme of emphasising collaboration between the parties throughout the disclosure process. PD 51U has been redrafted to place far less emphasis on the need for a hearing in order for the court to give guidance on disclosure issues and such issues can be decided on the papers. It now states more clearly that either party can approach the court independently without having to make a joint application. The hope is that the parties can seek a nonbinding determination from the court as opposed to exhaustively ventilating either side of the issue over correspondence and incurring additional costs.

However, the redraft also makes clear that the court can control the disclosure process in the traditional way by a party issuing an application notice seeking the court’s determination on a particular issue.

Multi-Party Cases

The Disclosure Pilot Scheme still applies to multi-party cases, although these most recent updates contain express recognition that multi-party cases are more than likely to require an approach tailored to the specific circumstances of the case. The new draft PD 51U states that the “court may order that the timetable and procedure is to be varied so as to provide a bespoke timetable and procedure to meet the needs of the individual multi-party case.” Under such circumstances, parties are encouraged to apply for such an order at an early stage.

FUTURE OF THE DISCLOSURE PILOT SCHEME

There is no doubt that there is opportunity for further refinement of the new rules and the recent volume of case law concerning the Disclosure Pilot Scheme—primarily focused on the list of issues for disclosure—is testament to the number of wrinkles that require ironing out if the Disclosure Pilot Scheme is to cement itself as a more efficient and proportionate procedural framework for tackling disclosure. However, as with any new procedural scheme, exactly how and where this refinement will come is only determinable from continuing to observe the Disclosure Pilot Scheme in practice.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

London
David Waldron
Ted Cook