The Disclosure Pilot now in force

The Disclosure Pilot (“DP”) commenced on 1 January 2019 in the Business and Property Courts (which includes the Commercial Court and the Technology and Construction Court) and will run for a period of two years.

Prior to the introduction of the DP, part 31 of the Civil Procedure Rules (“CPR”) governed the disclosure process in the Business and Property Courts and the most common disclosure order given by the courts was that each party give ‘standard disclosure’. In short, giving ‘standard disclosure’ required each party to disclose (a) the documents on which it relied, (b) the documents which adversely affected its own case, (c) the documents which adversely affected another party’s case or (d) the documents which supported another party’s case (CPR 31.6) and each party had a duty to carry out a reasonable search for such documents (CPR 31.7).

Due to the number of electronic documents held by businesses, the requirement to carry out such a reasonable search for documents meeting the test of standard disclosure often meant that the sums spent on the disclosure phase of litigation were disproportionate to the sums in dispute. The DP has been designed with the objective of addressing this issue and making the costs associated with carrying out disclosure proportionate.

Under the DP, the disclosure process to be applied is very different from what has gone before. Firstly, each party is under a duty to disclose known adverse documents regardless of any order that may be made in respect of disclosure.

Then (save in certain circumstances) each party is to provide, with its statement of case, ‘Initial Disclosure’, namely the key documents on which it relies and the key documents required by the other party to enable it to understand the case it has to meet. If a party wants to seek disclosure of documents in addition to, or as an alternative to, Initial Disclosure then they must request ‘Extended Disclosure’ (this is likely to happen in the majority of cases with the court then ordering Extended Disclosure at the Case Management Conference by reference to the various Issues for Disclosure (see below)).

If a party indicates that it is likely to request Extended Disclosure then the next step in the process is for a draft ‘List of Issues for Disclosure’ to be produced by the claimant’s solicitors and for the parties to seek to agree the issues contained therein ahead of the Case Management Conference. The issues identified in the ‘List of Issues for Disclosure’ should be those key issues in dispute which the parties consider will need to be determined by the court with some reference to contemporaneous documents. In respect of each issue identified in the ‘List of Issues for Disclosure’ each party must then indicate which of the new Extended Disclosure models it says should apply and the court will then decide at the Case Management Conference which model is to apply in respect of each issue.

The five new disclosure models are:

Model A – Disclosure required in respect of some or all of the Issues for Disclosure is limited to known adverse documents (this should not require any further disclosure from that already given under the general duty to disclose known adverse documents).

Model B – Limited Disclosure - which involves (to the extent not done so through Initial Disclosure) disclosing (a) the documents on which a party relies, (b) those that the other party needs to understand the case it has to meet and (c) known adverse documents.

Model C – Request-led search-based disclosure – which involves a party searching for certain documents or classes of document requested by the other party (with the court to determine if the requests are reasonable and proportionate in the case of dispute) and also disclosing known adverse documents.

Model D – Narrow search-based disclosure – which involves disclosing documents which are likely to support or adversely affect its case or that of another party and carrying out a reasonable and proportionate search for such documents (this is similar to giving standard disclosure under CPR 31). The parties also still need to disclose known adverse documents.

Model E – Wide search based disclosure – which involves disclosing documents which are likely to support or adversely affect its case or that of another party’s or which may lead to a train of inquiry which may then result in the identification of other documents for disclosure and carrying out a reasonable and proportionate search for such documents. The parties also still need to disclose known adverse documents.

Disclosure models D and E are to be the exception not the norm (especially in the case of Model E) and the courts are likely to utilise Model C in the majority of cases. This will no doubt result in the costs associated with the disclosure phase of the litigation reducing, however, more costs will be incurred by the parties in advance of the Case Management Conference in dealing with disclosure, which is another example of yet more cost being front-loaded into the litigation process. On balance though, the additional cost incurred early in the litigation process is likely to result in much larger savings later on in the process when the parties have to carry out disclosure, so the pilot is likely to be well received.