New disclosure rules, which are being introduced in direct response to widespread criticism of the current disclosure process, will be piloted for a two year period from the beginning of next year. It is hoped the new pilot will improve the expensive and extensive disclosure process currently in place in England and Wales. The pilot will apply to both new and existing proceedings but it will have no effect on disclosure orders made before 1 January 2019.
Applying in the Business and Property Courts in the Rolls Building in London as well as the centres in Bristol, Birmingham, Cardiff, Leeds, Liverpool, Manchester and Newcastle (subject to various exceptions), the pilot will be trialled on all claims in the Business and Property Courts except competition claims, public procurement claims, claims in the Intellectual Property and Enterprise Court, claims in the Admiralty Court, claims within the Shorter and Flexible Trials Schemes and claims within either a fixed or capped costs regime.
If successful, it is envisaged that the pilot will be extended and implemented in other areas and other courts across the country.
The main aim of the new disclosure rules is to reduce the time and money spent on this substantive aspect of litigation. In recent years, particularly since the increased focus on the disclosure of electronic documents, parties are having to sift through thousands of physical or electronic documents (often both) as part of the disclosure process. It is commonly accepted that this is partly attributed to ‘document dumping’ – the disclosure of documents that are connected to but not necessarily relevant to a case or issue.
Significant changes/additions to the existing disclosure process:
- ‘Known adverse documents’ – there will now be a greater focus on the disclosure of documents that a party is (1) aware of and (2) which are adverse. This term is defined in detail in the new disclosure practice direction to ensure full compliance, even where those persons “aware” are no longer with the relevant company.
- ‘Preservation of documents’ – the pilot introduces an express duty for employers, in addition to legal professionals, to send “litigation hold” letters to relevant existing and former employees when litigation is underway/contemplated, so that they can refrain from destroying/deleting any relevant documents.
- ‘Initial Disclosure’ – this new step will mean parties will have a duty to disclose any documents that they wish to rely on, together with documents required by the other party in order to respond effectively to the case against them.
- ‘Extended Disclosure’ – if a party wishes to have the disclosure of documents other than those disclosed as part of the ‘Initial Disclosure’ process, a request must be made for ‘Extended Disclosure’ within 28 days of service of the latest statement of the case.
- ‘List of Issues for Disclosure’ – this is a new document that will need to be completed by the claimant where one or more of the parties have specified that they are likely to request Extended Disclosure. This list provides an opportunity to define the extent of any additional disclosure requirements for any key issues in dispute and must be served within 42 days of the final statement of the case.
- ‘Extended Disclosure Models’ – the pilot will see the introduction of a completely new range of disclosure options. This is a significant change which should mean a shift away from the current most commonly used ‘standard disclosure’ option, which tends to be used even when it is perhaps not the most appropriate choice. The obligations under the new models will range from the disclosure of “known adverse documents” only (Model A), to “wide search-based disclosure” (Model E), which will encompass the former ‘standard disclosure’ duties, as well as the disclosure of documents that could lead to a train of enquiry. Model D – ‘Narrow search-based disclosure, with or without Narrative Documents’ has been likened most to the traditional standard disclosure model.
- Irrelevant Documents - A new express duty to refrain from producing irrelevant documents – this is a significant step and will prevent the inadvertent (or indeed deliberate!) ‘document dumping’ that has been taking place in recent years.
- ‘Disclosure Review Document’ – the introduction of this document will provide a platform for the parties to identify, discuss and try to agree on the extent of any disclosure where any of Models C-E is sought.
- ‘Disclosure Guidance Hearing’ – the pilot introduces this new type of hearing which will allow parties to obtain guidance from the court in relation to any disclosure issues in dispute, either ahead of or following the CMC stage. This addition will no doubt prove invaluable to court users unsure of which model to opt for, particularly in the early days of the change.
- Sanctions – it was thought that the new disclosure rules would bring about a stricter approach to dealing with a party’s failure to comply with its disclosure obligations. However, disappointingly for some, the harsher sanctions lobbied for have not been introduced and so the usual sanctions (e.g. adverse costs orders, condition disclosure orders) will be used where appropriate.
What will this mean?
Whilst on paper the changes are largely considered welcome, overdue and necessary, the success or failure of the pilot will depend on whether parties take full advantage of the lighter, more flexible approach to disclosure being offered by way of the new Extended Disclosure Models and the new option to do away with anything but ‘Initial Disclosure’. With the introduction of extras such as the Disclosure Review Document and the Disclosure Guidance Hearing, it should prove more difficult for parties to blindly opt for Model D (the closest model to standard disclosure), meaning the pilot should hopefully have its desired effect.
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