Every litigator will have heard of the Disclosure Pilot effective 1 January 2019 and applicable to the Business and Property Courts (Rolls, Bristol, Birmingham, Cardiff, Leeds, Liverpool, Manchester and Newcastle). However, not every litigator may know exactly what this pilot entails and what its effects will be – both for the legal representative and the client.
The Disclosure Pilot (“the Pilot”) came into existence because of a general feeling by the profession and GC100 that the costs of disclosure were excessive and wasted, with parties from the outset collating far more documents than needed.
Disclosure has been tinkered with over the years – there has been the introduction of e-disclosure in 2010 (PD31B) and in 2013 there were the Jackson reforms, but it was always a sticking plaster. The old paper world no longer exists and a fresh start was needed – simply adding another Practice Direction was not going to be sufficient this time.
The new rules mean an abrupt change – there will no longer be the default setting of standard disclosure but instead 5 different disclosure models. It is important to remember that disclosure is a tool to use for our client’s benefit and with the ‘old rules’ the disclosure exercise has become disproportionate in relation to the documents which were being discovered, and too much time and cost was being wasted in searching for that needle in a haystack.
The Pilot contains specific disclosure duties for both legal representative and clients (PD51U para 3.1 to 6). Legal representatives need to be conscious of their client’s duties as well and it may be wise to revisit and update the client care letter.
The new duties include provisions against swamping the other side in irrelevant documentation and actively disclosing known adverse documents (KADs).
Legal representatives need to be mindful of disclosure from the outset of litigation – consider your client’s document deletion/destruction process and advise them of their duties. Equally you must now take reasonable steps to ensure third parties or agents don’t destroy documentation.
As I touched on above, disclosure now starts much earlier. Initial Disclosure is the new obligation under PD51U para 5 to provide an initial disclosure list accompanied by the documents at the same time as the statements of case. This is to be done electronically, unless agreed otherwise.
The new models
Within 28 days of the Statement of Case being concluded, the parties now need to state if they will be requesting Extended Disclosure, and if so which Disclosure Model they wish to follow.
Model A requires the least work and is limited to KADs
Model B in addition to KADs includes key documents on which each party relies and that are necessary for the other side to understand the claim or the defence
Model C requires a search to be carried out including particular documents and narrow classes together with KADs.
Model D is most like the old standard disclosure. Narrow search-based disclosure with or without narrative documents and KADs
Model E is a wide search-based disclosure (includes train of enquiry which may result in identifying further documents) and KADs. Model E is only used in exceptional cases.
If a search-based Disclosure Model (i.e. Models C, D and/or E) is proposed the Disclosure Review Document will need to be completed.
Things to note
- It’s only applicable to the B&PC referred to above
- If disclosure has been ordered before the 1 January 2019 then you aren’t affected, however if you wish to vary the order then you will be subject to the new rules
- If you have had standard disclosure but now wish for specific disclosure, then the rules will apply
- The definition of documents is wider – ranging from social media to metadata
- Take note of the duties applying specifically to lawyers and clients – as a lawyer be aware of what your client must do
- Initial disclosure will now take place much earlier – the amount of preparation at the Statements of Case stage will increase
- The DRD (Disclosure Review Document) is substantial – approximately 40 pages
- The Claimant is responsible for drafting and keeping the DRD up to date
- When choosing which disclosure model, be prepared to justify to the Court why you are seeking that model
- Parties are now obligated to consider using Technology Assisted Review.
- If the parties just can’t agree on disclosure then before the CMC you now have the opportunity of the shorter, less formal Disclosure Guidance Hearing.
The Pilot will certainly focus parties’ minds as to disclosure and will hopefully encourage cooperation between the parties. However, we anticipate just as the introduction of Cost Management Conferences saw a new industry grow as we had Precedent H, the involvement of costs lawyers, followed by Precedent R, leading to an hour debating the issues before the Judge, there will be a whole new tranche of costs for the new disclosure process which the client will have to pay. The costs will become even more disproportionate and the overall size of the bills will be criticised by the judiciary when, ironically, it has been caused by measures to assist them manage the judicial process.
The Initial Disclosure is undoubtedly going to bring increased costs for the client. Coupled with the increase we saw in the Court issue fee only a few years ago this makes it even more appropriate to consider mediation before proceedings are issued.
This won’t be suitable for all cases but given the fact Initial Disclosure now happens so much earlier, then virtually all the relevant evidence will be in the hands of the legal representatives at a much earlier stage, again making mediation viable at an earlier stage – before the 5-10 hours it takes to prepare for the costs hearing and the extra 5-10 hours that will be caused by the new disclosure process. No excuses!