New reforms due to be piloted next year have the potential to change the disclosure landscape across England and Wales. The two-year pilot scheme, which is scheduled to start on 1 January 2019, will run in the Business and Property Courts in the Rolls Building in London and in Bristol, Birmingham, Cardiff, Leeds, Liverpool, Manchester and Newcastle.
Background to the reforms
The reforms had their genesis in the Disclosure Working Group, a group of interested legal professionals, established in 2016 by the now Master of the Rolls, Sir Terence Etherton. The group quickly recognised that the current disclosure regime was too unwieldy, especially in light of the vast amounts of digital data that now forms such a significant part of many civil proceedings.
Although previous reforms to the disclosure process were made in 2013, these were never compulsory and were only ever presented as one of a “menu” of available options. Courts, parties and lawyers have tended to default to the “standard” disclosure option as set out in Part 31 of the Civil Procedure Rules. In 2017, the Disclosure Working Group concluded that Part 31 was no longer fit for purpose and that “wholesale cultural change” needed to be engineered. Consequently, the pilot aims to ensure that litigation in general and disclosure in particular is conducted as proportionately, efficiently and cost-effectively as possible.
Basic disclosure and extended disclosure under the pilot scheme
The pilot scheme provides for two types of disclosure:
- Basic disclosure of key documents (up to a maximum of 1000 pages or 200 documents, although the parties may agree a higher number, provided this is “reasonable”) with the parties’ statements of case. It is intended that basic disclosure should involve only those documents that are necessary for the other side to grasp their opponent’s case.
- Extended disclosure. This is comprised of a new list of five separate disclosure models, intended to prompt parties to move away from standard disclosure. If the parties wish to use extended disclosure they must ask permission from the court, and provide reasons for their request. Permission will not be granted automatically; it will be decided on a case-by-case basis once the judge has heard the reasons put forward by the parties to the case. The five disclosure models under this head vary in their scope. Under the least onerous model, the judge may order that the parties disclose only “known adverse documents”. At the other end of the scale, the judge may order the parties to use the widest definition of “relevance” when searching for, and disclosing, documents pertinent to the case. Judges have been advised to be “proactive and robust” when determining the correct disclosure model for any particular case and, under no circumstances, to accept the parties’ proposed disclosure model without questioning its appropriateness for the case.
It is already acknowledged that basic disclosure may not be suitable for the largest commercial cases due to the number of documents involved.
The length and extent of the pilot scheme suggests that the intention is for the reforms to be rolled out across the rest of the country in due course. That said, the success of the scheme is likely to depend on the willingness of the entire judicial system to embrace the changes.
Article by Simon Fagan, Partner & Head of Commercial Litigation at Aticus Law.