All change please—The new disclosure pilot scheme in the Business and Property Courts

All change please—The new disclosure pilot scheme in the Business and Property Courts
A new mandatory disclosure pilot scheme will take place from 1 January 2019 in the Business and Property Courts. Litigators should brace themselves for a brand new approach to disclosure which aims to combat the often excessive cost and complexity of disclosure under the current rules.

 

Background

In May 2016, a working group was established to examine the disclosure process in civil proceedings in response to concerns from court users and the profession regarding what was perceived as excess costs, scale and complexity of the process.

 

The Disclosure Working Group (chaired by Lady Justice Gloster), identified a number of key defects in the current disclosure regime for the Business and Property courts in England and Wales and concluded that a ‘wholesale cultural change’ was required. On 31 July 2018, the Disclosure Working Group announced that the CPR Committee gave final approval for a two-year disclosure pilot scheme on Friday 13 July 2018, and ministerial consent was given in September 2018.

Where and when will the disclosure pilot apply?

 

The mandatory pilot scheme will apply across the Business and Property Courts in the Rolls Building in London and in Bristol, Cardiff, Birmingham, Manchester, Leeds, Newcastle and Liverpool. From the commencement date (1 January 2019), the pilot will apply to existing and new proceedings, with certain exceptions (eg competition claims).

What are the key features of the disclosure pilot scheme?

 

Key features of the disclosure pilot scheme are:

• there will be no automatic entitlement to search-based standard disclosure
• ‘initial disclosure’ is introduced as a new concept and will generally be the first stage in the disclosure process. It will be provided with the statements of case unless dispensed with by agreement or order (and unless other exceptions apply). A search for documents should not be required, but can be undertaken. Initial disclosure should generally comprise no more than 200 documents or 1000 pages.
• a disclosure review document (DRD), which the parties need to complete together, will replace the electronic disclosure questionnaire
• parties will have a general duty to disclose adverse documents
• a party may seek ‘extended disclosure’ in addition to, or instead of, initial disclosure
• extended disclosure involves using disclosure models
• there are five models (A–E) for extended disclosure, including disclosure confined to known adverse documents, limited disclosure, request-led search-based disclosure, narrow search-based disclosure and wide search-based disclosure (including train of enquiry documents)
• parties are strongly encouraged to make use of technology in the disclosure process in order to save time and cost
 
Where can I find out more?

 

Subscribers of Lexis®PSL can access further information on the disclosure pilot scheme, see Practice Note: Business and Property Courts—the disclosure pilot scheme and Checklist  Timetable for disclosure—Business and Property Courts disclosure pilot

 
 

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About the author:
Olivia Dhein

Olivia specialises in general domestic and international commercial litigation. She trained and practised as an associate at Freshfields Bruckhaus Deringer. During her time in practice she acted primarily for financial institution clients and worked on a range of commercial disputes and regulatory investigations, covering areas such as breach of contract, mis-selling of financial products, domestic and cross-border enforcement, discrimination under the Equality Act 2010 and domestic and international requests for information by financial services regulators.

Olivia works on the PSL Dispute Resolution module, covering evidence and disclosure, injunctions and other relief orders and general applications.