February 2020

The Disclosure Pilot Scheme was introduced in the Business and Property Courts on 1 January 2019 and was set to run for two years. As we are now into 2020, the first year of the scheme is complete, making it an appropriate time to reflect on the scheme and how it is working in practice.

What is the Scheme trying to achieve?

The Pilot Scheme was introduced by the Disclosure Working Group (DWG) to support recent reforms, the use of legal technology and the general initiative to bring a more efficient approach to the current rules on disclosure in CPR 31. The DWG based the scheme on feedback that they had received from specialists, the judiciary and the legal profession.

The Pilot Scheme introduced a new two-stage approach to disclosure, with initial disclosure to be provided with at the outset of the proceedings and extended disclosure (under one of five new models, labelled A to E) later in the court process. The Pilot encourages more limited searches for and disclosure of documents than under the traditional “standard disclosure” model.  It also expressly states the duties applicable to the parties and their legal representatives in relation to disclosure.

Where does the Scheme apply?

In light of the decision in UTB LLC v Sheffield United Ltd, the Pilot is applicable to all new and existing proceedings in the Business and Property Courts (subject to exemptions for certain forms of proceedings, such as competition and public procurement matters, that are not covered by the Pilot). Outside this sphere, the traditional rules on disclosure still apply.

Reflections in practice

In UTB LLC v Sheffield United Ltd, Sir Geoffrey Vos emphasised that:

The introduction of the Pilot was intended to effect a culture change. The Pilot is not simply a rewrite of CPR Part 31. It operates along different lines driven by reasonableness and proportionality (see paragraph 2 of PD51U), with disclosure being directed specifically to defined issues arising in the proceedings.

Such proportionality considerations can be seen in the range of models that the parties are required to consider for disclosure. This range of models of disclosure moves away the old scheme under CPR 31 that in practice nearly always resulted in the parties adopting the broad standard disclosure model.

Sir Vos further emphasised that:

The parties need, as matters progress, to consider very carefully their continuing obligations under paragraph 3.2(3) of PD51U "to liaise and cooperate with the legal representatives of the other parties … so as to promote the reliable, efficient and cost- effective conduct of disclosure", and indeed the trial of the action more generally.

In the more recent case of Agents' Mutual Limited v Gascoigne Halman Limited, Mr Justice Smith also emphasised the parties’ obligations under the Pilot to co-operate in relation to disclosure, particularly in the context of electronic disclosure:

Because electronic searches have the effect of determining the scope of subsequent, more intense and probably manual reviews, it is imperative that such electronic searches not be conducted unilaterally, but with the parties engaging with each other with a view to agreeing precisely how the electronic search is to proceed. I have well in mind that framing electronic searches is a difficult process likely to be informed by trial and error. […] In which case, in an iterative and co-operative way, the process of re-framing the electronic search process must be done again. It is important that this process be completed before any manual review is undertaken: it is the manual review that costs time and money, not the multiple re-runs of electronic searches.

Conclusion

The Pilot Scheme continues to be subject to review and comment as it proceeds through the pilot period.  While it introduces additional costs earlier in the proceedings (through time spent considering the model of disclosure to be selected and formulating matters on which disclosure is sought), its aim is that this will make the disclosure process itself less costly and the documents to be reviewed more manageable.

This objective can only be fulfilled however, if all parties comply with the requirements of the Pilot and are prepared to co-operate in relation to disclosure rather than using the Pilot as a basis for satellite litigation.

The DWG is continuing to monitor the Pilot and will in due course be making a decision about the future of the Pilot at the end of the two year period.

Expert
Peter Blake
Partner