The Great Comeback – Disclosure Pilot Scheme 2.0

April 8, 2021

With the extension of the Disclosure Pilot Scheme (“DPS”) until 31 December 2021 came amendments to the scheme to address feedback received from practitioners by the Disclosure Working Group (DWG).

Governed by Practice Direction 51U (PD 51U), the DPS has been operating in the Business and Property Courts since 1 January 2019 and was introduced with a view to creating a more reasonable, proportionate and cost-effective disclosure process.

However, based on the feedback received from practitioners, the DPS is not achieving its intended goal much of the difficulty highlighted being around the lack of clarity and onerous requirements relating to the disclosure review document (“DRD”).

From 6 April 2021, amendments to PD51U will come into effect to address this feedback; but, what has changed and what impact do we expect these changes to have?

What has changed?

Parties can agree to dispense with the Lists of Documents at the Initial Disclosure stage of proceedings.
There has been clarification as to the latest time for disclosure of known adverse documents and that adverse documents do not need to be disclosed with Initial Disclosure.
Parties have the option to dispense with Initial Disclosure Lists altogether and parties will no longer need to state “how” documents are held.
Document preservation notices are only required to be served on employees or former employees where there are reasonable grounds for believing that the employee or former employee may be in possession of disclosable documents not also in the party’s possession.
Parties’ legal representatives will be able to confirm, on their behalf, that document preservation duties have been complied with.
The List of Issues for Disclosure will only be required where one or more party seeks search-based Extended Disclosure.
Not every section of the DRD is now required to be completed in cases where there is likely to be limited disclosure, or the identification and retrieval of documents is straightforward – allowing greater flexibility around the completion of the DRD. Section 2 of the DRD (which deals with the parties’ parameters for disclosure) only needs to be completed if any party seeks search-based disclosure.
It is now possible to seek guidance “on any point concerning the operation of the pilot” and judges have the flexibility to extend the maximum hearing or pre-reading time.
When it comes to directions, the parties are now able to apply for directions about any aspect of search-based disclosure which includes, for example, the scope of searches, how searches should be carried out or how to use of technology to undertake the relevant review.

Do we expect these amendments to make a difference?

With initial disclosure obligations, the DPS has made disclosure more front-loaded. With disclosure costs being incurred at a far earlier stage of the litigation process (along with, for example, fees for solicitors’ advice as well as the court’s fees for issue), the DPS can make issuing a claim an arduous and expensive process. However, the added flexibility and opportunity to dispense with the Lists of Documents is a welcome amendment for parties who wish to alleviate some of this initial cost pressures.

With respect to any extended or further disclosure, there is often greater expense still. This is particularly true with document-heavy or very complex litigation (for example, when agreeing the issues and search parameters). This is largely due to the detailed nature of the DRD, which itself has become a contentious document which was never the intention of the new disclosure rules.

That said, we hope that these changes, in particular, the flexibility around the DRD requirements and increased assistance and guidance from the courts, will assist parties with streamlining the preliminary stages of disclosure and help focus the disclosure process without the additional costs burden for clients.