It’s Time to Talk About Disclosure.

29th November ‘18

Introducing the two-year pilot of new disclosure rules to commence 1 January 2019

Have you ever looked in fear at the 20 files full of disclosure documents on the shelf in your office? Have days of disclosure been followed by dreams plagued with visions of an endless array of excerpts?

Have you ever been ready to submit your meticulous disclosure report when suddenly your computer freezes in fear from the from the sheer volume of emails your client sends through an hour before the 4:00pm deadline?

That’s when disclosure really becomes a dead-line. The high costs and excessive time often spent on disclosure in civil litigation cases could not be much more.

Even the Courts know that it is a time for change.

A Disclosure Working Group (the working group) was set up in 2016 to consider the rules governing disclosure of documents in English litigation due to the excessive burden and cost of disclosure. Previous attempts at reform have not produced any real improvements.

By November 2017, the working group decided that a “wholesale cultural change” was required to replace the current ‘standard’ disclosure option in Part 31 of the Civil Procedure Rules.

From 1 January 2019, a mandatory two-year disclosure pilot scheme will operate in the Business and Property Courts across England and Wales. This will apply to existing and new proceedings.

The scheme is set out in a new Practice Direction, which will become Practice Direction 51U.

With the UK preparing to exit the European Union, these reforms have come at a crucial time. They are part of a recent trend to promote and facilitate more efficient and cost-effective litigation in the English courts.

What do the new rules consist of?

The pilot practice direction (PD) sets out a new two-stage process for disclosure:

Stage 1: Initial disclosure

This stage requires parties, when serving their particulars of claim or defence, to provide the key documents relied on in support of the claims or defences advanced and the key documents necessary for other parties to understand the claim or defence they have to meet.

Documents already provided to the opponent or known to be in its possession, are excluded. This obligation may be dispensed with by agreement or court order.

Crucially, initial disclosure will not apply where it is clear that either party will be providing more than about 1000 pages or 200 documents. This means that for most commercial cases, this stage will be bypassed as they will often exceed the 1000-page limit.

Stage 2: Extended disclosure

Parties can request extended disclosure in addition to or as an alternative to initial disclosure.

Extended disclosure will be based on one or more of five different disclosure models that will be selected in relation to the issues for disclosure that the parties will need to identify.

There is no automatic entitlement to extended disclosure. No application notice is required, but the parties will be expected to have completed the document setting out the list of issues for disclosure, their proposals as to which disclosure model(s) should apply, and information as to how documents are stored and how they might be searched and reviewed.

Benefits

The new disclosure models are not wildly different from the current menu of disclosure options set out in CPR 31.5. However, the benefits can be far-reaching. For example, the main aim of the reforms is to reduce the extent of disclosure and therefore the cost.

One of the main purposes of the new scheme is a greater focus on the key issues for disclosure in the case, rather than on every issue pleaded, so that the sea of disclosure is no wider than necessary.

The practice direction steers us away from the broad disclosure models and toward a more tailored solution, by abolishing the terminology that might suggest a standard or default option.

If the pilot is to bring in real benefits in 2019, the practice direction notes the court’s expectation that the parties and representatives involved will co-operate to assist in determining the scope of disclosure as efficiently as possible.

The court’s job will be to ensure that disclosure is not wider than is reasonable and proportionate in order fairly to resolve the issues for disclosure.

If you would like any more information about this article, please contact the litigation team who will be able to assist

This paper is intended to be a brief note for clients and other interested parties. The information is believed to be correct at the date of publication but should not be relied upon as a substitute for professional advice. Please speak to a member of our team.

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