Amendments to the Disclosure Pilot Scheme

Published 24 November 2022

The Disclosure Pilot Scheme (Practice Direction 51U, “DPS”) has been operating in the Business and Property Courts since January 2019 with the intention of managing the costs and complexities of the disclosure process while also bringing the principles of reasonableness and proportionality to the forefront of the process.  The DPS provides parameters and stages within which disclosure should be conducted that some consider has generated a more involved process than the old regime, while others contend that these rules assist parties with managing voluminous electronic data which is becoming more prevalent in large-scale commercial disputes.

As of 1 October 2022, the DPS has become permanently incorporated within the Civil Procedure Rules pursuant to Practice Direction 57AD.  The substantive changes which have been enacted include:

• Part 8 Claims: Practice Direction 57AD shall not apply to Part 8 claims (PD 57AD 1.4) unless otherwise ordered, in which instance, the court can apply discretion to modifying the case management timetable where appropriate;

• Known Adverse Documents:
  • The definition of “adverse” documents has been clarified and relates to any of the issues in dispute, not only those identified in the agreed Issues for Disclosure (PD 57AD 2.7); and,
  • The wording regarding the timing for disclosure of Known Adverse Documents has been amended to clarify that these documents do not need to be provided as soon as proceedings commence (PD 57AD 3.1(2)).
• Model C requests (disclosure of particular documents or narrow classes of documents): clarification that a party may mutually address Model C requests to other parties and also in respect of its own disclosure (PD 57AD 8.3).

• Certificate of Compliance: confirmation that a Certificate of Compliance is not required where a Disclosure Review Document has not been prepared (PD 57AD 10.8).

• Disclosure Certificate:
  • The scope of the duty to contact any relevant former employees for the purpose of identifying Known Adverse Documents has been amended such that, the parties only need to “take reasonable steps to check the position” with employees rather than receive positive confirmation; and,
  • Confirmation that a Disclosure Certificate may be signed by the party's legal representative, provided that the legal representative has explained the significance of the Disclosure Certificate to their client and received written authority to sign the Disclosure Certificate on the client's behalf (PD 57AD 12.6);
• Less Complex Claims: unless other factors indicate otherwise, the value below which claims should be treated as ‘Less Complex Claims’ (under the simplified Appendix 5 procedure) is increased from £500,000 to £1 million.

Sir Julian Flaux, Chancellor of the High Court, has endorsed the introduction of the DPS as it has allowed for greater transparency between the parties from the commencement of proceedings and reduced the number of contested disclosure applications.  Specifically, the Chancellor noted that "this early thought and engagement by users has seen a dramatic decline in the number of post CMC applications for specific disclosure and a far more focused and efficient approach to the disclosure process".

The latest amendments do not address the specific framework required for dealing with disclosure in complex, multi-party litigation and rather, the current rules provide the court with discretion to depart from the case management timetable set out in the rules for such litigation.  It is evident that there is still scope for the DPS to evolve and we will continue to monitor and report on any developments in this space.