Disclosure Pilot Scheme

From 1 January 2019, a mandatory disclosure pilot scheme came into operation in the Business and Property Courts. The main aim of the scheme is to ensure that the process of disclosure becomes more proportionate and reduces the number of documents which have to be disclosed.

Whilst the new pilot applies to all cases in the Business and Property Courts issued after 1 January 2019, some cases issued in 2018 will also fall underneath the new pilot especially those proceeding to case management in 2019.

The pilot has been put together to reflect the development in technology and the shift away from hard copy documents in this paper light era.

The new process under the pilot involves a two prong approach:

Firstly, all parties will be expected to provide with their statements of case the key documents which they intend to rely upon as well as any documents which are essential to allow the other party to understand the claim or defence they are advancing.

Secondly, once initial disclosure has been complied with, the parties if they consider it necessary will have to request Extended Disclosure from the Court. As part of this route the parties will be expected to agree where possible a list of issues in the cases and then choose from a menu of disclosure models which model is most likely to achieve their desired outcome in the most proportionate manner.

Parties requesting Extended Disclosure are required to complete a Disclosure Review Document which not only details the issues and the disclosure models but also where the relevant information is being stored and how the parties propose searching for that information.

Parties familiar with the disclosure process may have concerns that the above approach will lead to parties choosing models which allow them to conceal ‘adverse documents’. However, the Court has made clear that parties have a duty to disclose all adverse document regardless of the disclosure models they have proposed unless they are privileged.

The pilot is still in the early stages so at present it is not clear whether it will be adopted permanently and or used by other courts.

In the past the disclosure process has been criticised for being outdated and failing to appreciate that every claim is unique. This has resulted in extortionate fees being incurred disclosing vast documentation which is often unnecessary. The new approach hopes to resolve these issues by giving back control to the parties to decide what disclosure is actually needed.

Disclosure can be a very timely and costly exercise, if you are involved in litigation and are unsure about what is required of you then please get in touch with our litigation team who would be happy to discuss this further.