The Disclosure Pilot Scheme… will it take off?

Disclosure is a crucial step in the litigation process, where the parties are required to allow inspection of documents to their opponents. The rules for disclosure in certain courts in the UK have recently changed, and it is vital that practitioners and their clients know exactly what is expected of them.

The new rules are part of the Disclosure Pilot Scheme (“DPS”), which was introduced on 1 January 2019 (and which can be found in Civil Procedure Rules Practice Direction 51U) for cases being heard in the Business and Property Courts, a division of the High Court of Justice.

Streamlining the system

The aim of the DPS is to make disclosure a more effective and resource friendly process. The traditional disclosure system has long been criticised as being too expensive and uncompromising; the new process looks to address the cost of dealing with disclosure and, in particular, dealing with how to more effectively narrow the scope of the documents that need to be reviewed, making the management of large amounts of electronic documents more cost-effective and less complicated. It is hoped that, under the scheme, a culture of cooperation will be cultivated between the parties in order to assist the court in determining the scope of disclosure.

What has changed?

There are a number of changes to the disclosure process – a few of those are briefly set out below.

Initial disclosure

This is now the first stage in the disclosure process and consists of providing the opposition with the statements of case. The parties provide an initial disclosure list of documents and copies of key documents relied on by the disclosing party (including documents referred to in the statements of case) and which are necessary for other parties to understand the claim or defence that they have to meet.

Preservation of documents

The DPS requires parties to take certain steps in order to comply with their document preservation obligations. These include:

  • Suspending the document deletion or destruction processes for the duration of the proceedings
  • Sending written notifications to all relevant employees and former employees
  • Taking reasonable steps to ensure that agents and third parties who may hold documents on the party’s behalf do not delete or destroy documents that may be relevant to the proceedings
  • Disclosing certain ‘key’ documents very early on
  • Disclosing any documents that the party is aware of (including through agents, employees etc.) which may contradict or damages their case, or assist their opponent’s.

The Disclosure Review Document

The disclosure review document (“DRD”) replaces the electronic disclosure questionnaire which was in place under the old rules. After the parties have filed their statements of case, and before the Case Management Conference, the DRD needs to be completed by the parties. The DRD sets out proposals for extended disclosure, information about how documents need to be stored and how they can be searched and reviewed.

What should you do now?

Regardless of whether you are a practitioner or a client, you must take steps to have your “disclosure ducks” in a row. Solicitors and clients owe obligations to the court under the DPS and those obligations must be met. You must be ready to look for and collate some key documents early in the proceedings (indeed, to accompany the formal claim or defence documents) as the disclosure process will start considerably earlier than under the old rules.

Even at this early stage, it is clear that with this shift in timing for the disclosure of certain documents, parties who are bringing or defending proceedings may also have to bring forward strategic decisions. For example, the prospect of early settlement may be more attractive where there are unhelpful documents which will come to light earlier than they might have before the scheme was introduced.

The DPS is still in its infancy, but it is hoped that the new rules will take off and will make what was once a time consuming and expensive part of the litigation process, smoother and more cost-efficient.

Ganesh Nanwani is a managing associate at Grosvenor Law, and regularly works on complex litigation matters.