Changes to the Disclosure Pilot Scheme


13th August 2021

Litigation & Dispute Resolution experts Joanne Thompson and William Rees look at the changes to the operation of the Disclosure Pilot Scheme for "less complex claims" below £500,000.

The Disclosure Pilot Scheme: aims and practical impact

Contained within CPR Practice Direction 51U is a disclosure pilot for the Business and Property Courts in England and Wales (the Disclosure Pilot). The Disclosure Pilot applies to High Court proceedings (exceeding £100,000 in value) and came into force on 1 January 2019 and will continue for three years.

The Disclosure Pilot was intended to assist the parties to the dispute and the Court in ensuring that disclosure is directed to the issues in the proceedings and that the scope of disclosure is not wider than is reasonable and proportionate in order to fairly resolve those issues. As such, broadly speaking, the Disclosure Pilot was brought in to focus disclosure in litigation and prevent bad practices such as parties disclosing excessive amounts of documents in order to “bury” their opponent in paper and drive up costs.

In order to achieve its aims, the Disclosure Pilot brought in new obligations to parties to litigation. Such obligations included the “Initial Disclosure” rules[1] which stipulate that each party must provide to all other parties at the same time as its statement of case an Initial Disclosure List of Documents that lists and is accompanied by copies of:

  1. the key documents on which it has relied; and
  2. the key documents that are necessary to enable the other parties to understand the claim or defence they have to meet.

The Initial Disclosure process brings forward the exchange of documents from the pre-Disclosure Pilot system where substantive disclosure took place upon disclosure directions occurring after exchange of statements of case.

In addition to Initial Disclosure, under the Disclosure Pilot, the parties are also able to (and regularly do) seek “Extended Disclosure”[2]. Extended Disclosure involves using Disclosure Models (with various models (A) to (E) with varying comprehensiveness) after “Issues for Disclosure” have been identified. To identify the Issues for Disclosure, the parties must seek to agree a list of issues. The parties must complete a “Disclosure Review Document” to identify, discuss and seek to agree the scope of any Extended Disclosure Model sought.

Issues with the Disclosure Pilot

The Extended Disclosure procedure has led to criticism. Despite the aims of the Disclosure Pilot, a substantial number of practitioners to a survey found that the new provisions “Exacerbated the adversarial environment in the litigation process” – contrary to the aims of the scheme. The List of Issues process and completion of the Disclosure Review Document referenced above are often the cause of issues. The aforementioned problems are normally exacerbated in multi-party matters, where agreeing the documents can be especially difficult.

Remedying the Issues

The Disclosure Working Group, in response to a request from the Chancellor to review the operation of the Disclosure Pilot, in July produced revisions to PD51U (the Revised Pilot). Key changes are listed below:

  • The Revised Pilot proposes the creation of a separate regime within the pilot for ‘Less Complex Claims’ applying to claims under £500,000. This regime will seek to simplify the disclosure process in simplifying the (currently problematic) Issues for Disclosure and Disclosure Review Document.
  • Multi-party cases will still operate within the spirit of regime set out in the Disclosure Pilot. However, there is now an express recognition that disclosure in multi-party claims is likely to need a bespoke approach from the court, which should assist the parties in reaching practical solutions suitable for the matter at hand.
  • Further, the Revised Pilot proposes amendments to the Lists of Issues for disclosure as regards disclosure Models (C) and (D) with a view to making the process of agreeing lists of issues simpler and less contentious and discouraging excess when Model C is used (which is at present an issue).

Conclusion

Practitioners and clients alike can take comfort from the proposals to the Revised Pilot. The proposals to the “Less Complex Claims” regime in particular look encouraging as a more manageable way of dealing with disclosure for practitioners and allowing clients to control costs more effectively.

This article has been co-written by Joanne Thompson and William Rees.

[1] Paragraph 5 PD51U
[2] Paragraph 6 PD51U

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