Disclosure: the living pilot

The disclosure pilot scheme is arguably one of the most significant procedural developments in litigation in England and Wales since the Jackson reforms were implemented. 

The aim of the pilot, which started at the beginning of 2019, is to address the perceived defects in the disclosure process under part 31 of the Civil Procedure Rules (CPR) and bring about a wholesale cultural shift in professional attitudes towards disclosure.

The pilot is mandatory for all proceedings in the business and property courts (except for limited exceptions) and was originally scheduled to last two years. However, it is set to be extended for other year, to run to the end of 2021. 

From the outset, the pilot has been described as a ‘living pilot’ and, with news of an extension, it is expected that some amendments to the wording of practice direction 51U (PD51U), which governs the pilot, will be implemented by the CPR committee (CPRC) before the end of
this year. 

At the time of writing, the exact detail of those changes is still unknown. However, it is anticipated that an interim report commenting on the pilot’s relative successes and failures will be published soon. This will include the recommendations of the disclosure working group – comprising lawyers, experts and judges responsible for the implementation of the pilot – which will likely reflect the eventual amendments to PD51U. 

In practice

A key difference between the pilot and the part 31 regime is the introduction of codified disclosure duties which extend to both parties and their legal representatives. One of the disclosure duties requires parties to take reasonable steps to preserve documents that may be relevant. This duty applies as soon as a person knows that it is, or may become, party to proceedings that have (or may be) commenced.

One criticism levied against this duty is that it requires parties to send a preservation notice to relevant former employees or other agents even before formal proceedings have begun. Taking this action may cause unnecessary concern if, realistically, proceedings remain a remote possibility. This is likely to be an area that will be subject to amendment by the CPRC in an attempt to relax this duty to a degree. 

The pilot introduced five different models for disclosure (models A to E) each providing for a certain level of disclosure (model A being the most limited and model E the most extensive). 

It is the incorrect use of model C, providing for request-led, search-based disclosure, which has received judicial criticism. In some instances, parties have sought numerous model C orders thereby overcomplicating the process. 

The position was clarified in the case of McParland & Partners Ltd v Whitehead [2020] EWHC 298 (Ch). The judge confirmed that model C is suited to an issue where a vast number of documents are likely to exist, but most of which would likely be irrelevant to the actual dispute. It is possible that we will see some further clarificatory language on this point when the working group issues its interim report. 

Central to the pilot’s inception was the need to tackle the perceived cost of conducting disclosure. However, there is a concern that some of the pilot’s new measures are actually increasing the cost, especially at an early stage. 

The focus of this criticism is the new disclosure review document (DRD) and the need for parties to formulate a list of issues for disclosure. Both were intended to focus on and ease the disclosure process, but they appear to have become a new hotbed of contention. However, parties have been put on notice that no advantage may be gained from being difficult about agreeing the list of issues or DRD (McParland). Going forward, judges will be quick to call out parties that fail properly to cooperate, as is required under the pilot.

The extension of the pilot means there is now more time before any permanent changes are made to the procedural rules, but when that change does happen it will likely closely reflect the workings of PD51U. 

This means parties and their legal representatives should pay close attention to the pilot as it enters its third year in operation.

Johnny Shearman is a professional support lawyer at Signature Litigation LLP signaturelitigation.com