The Disclosure Pilot Scheme – What is it?
The changes and advancements in technology and the volume of data produced by businesses has meant that the current disclosure scheme is no longer fit for purpose.
Reviewing disclosure documents is always an expensive and timely part of the Court Process for parties. Often, time is wasted reviewing vast amounts of data which has been ‘dumped’ on parties by the other side, the majority of which is irrelevant.
A working group set up in May 2016 proposed a wholesale cultural change to the current disclosure process in the hope that this would reduce the cost of disclosure and take into account recent technological advancements. The ‘Disclosure Pilot Scheme’ has introduced a number of key changes:
- Standard Disclosure: This has always been seen as the default option for disclosure and under the new pilot scheme this has been replaced by extended disclosure which will NOT be a default option.
- Initial Disclosure: This is now the first step in the new disclosure process and will occur at the beginning of the litigation process there are limits on the number of documents that can be disclosed at this stage.
- Disclosure Review Document (DRD): If parties feel that initial disclosure has not effectively dealt with disclosure then they can request to use ‘extended disclosure’ in order to use this option a DRD must be jointly prepared by the parties and provided to the Court prior to the CMC. The review document sets out which model of extended disclosure the parties would like to use. This document will replace the need for an electronic disclosure questionnaire.
- Extended Disclosure: There are five different models of extended disclosure listed from A-E. The parties can request which model they would prefer but it is ultimately up to the Court to decide which model – if any – will apply.
- Duties of Parties: the disclosure pilot scheme has expressly set out the duties of parties in regard to disclosure. The duty to disclose ‘known adverse documents’ has been strengthened and now applies to all cases. Parties must also refrain from providing documents to another party that have no relevance to the disclosure issues in a claim, often referred to as ‘document dumping’.
The disclosure pilot scheme will come into force on the 1st January 2019 and last for a period of two years. With some limited exceptions the scheme will apply to any new and existing cases in the Business and Property Courts. It is thought that after the two years, if the scheme has been successful, it is likely that it will be rolled out across all Courts.
The scheme will dramatically alter the current disclosure framework and although the aim is to make disclosure more proportionate it will be interesting to see how effective the new regime is on controlling the costs of disclosure in litigation. The success of the scheme will rely heavily on clients, the legal profession and judges engaging wholeheartedly with the new process.