The rock and the stream – who wins in the disclosure pilot?

Guest post by Avneet Baryan, an associate at Rosling King and committee member of the Junior London Solicitors Litigation Association

Baryan: The pilot needs further work

The disclosure pilot scheme has been extended until 31 December 2021. Meanwhile, we eagerly await the decision of the Civil Procedure Rule Committee (CPRC) on the proposed amendments to the pilot made by Lord Justice Flaux, chair of disclosure working group, following consideration of Professor Rachael Mulheron’s third interim report from February this year.

The proposed amendments are helpfully outlined as tracked changes to the disclosure review document (DRD), explanatory notes and to the practice direction itself.

The proposed amendments are undoubtedly welcome, particularly because they provide clarification and modification, for example, to the debate around the meaning of ‘known adverse documents’ and give greater clarity on how to approach disclosure guidance hearings.

Of particular note, and welcome news to those looking to cut the cost of disclosure, is the proposed removal of the obligation to produce both a list of issues for disclosure and the DRD if both parties have agreed that extended disclosure is to be restricted to non-search-based models A and/or B. There are also proposals to simplify the DRD.

Care has clearly been taken in addressing the concerns of practitioners raised through the consultation prior to the production of Professor Mulheron’s report. However, the proposed changes may be said by some still to not yet go far enough at making costs savings for parties.

This is important, given that the reform of the disclosure regime was undertaken with a key aim of streamlining and simplifying the disclosure process for parties, whereas for many, the reforms have created more front-loaded cost.

In an arena where businesses are holding ever-increasing volumes of data, it has to be important to ensure that they remain committed to litigating their disputes in England and Wales, rather than being tempted by other international jurisdictions due to the overly burdensome disclosure procedures here. Not to be forgotten also is the important issue of containing cost in the early stages of a claim, to allow for settlement.

Addressing timings within the pilot is key to managing the important issue of front-loading costs. For example, while the initial disclosure at the outset of a claim is a useful tool in putting parties’ cards on the table, so to speak, there is an argument that the timing of the list of issues for disclosure and the DRD should be pushed back to after the case management conference (CMC).

Significant costs are involved in negotiating and finalising the DRD before a CMC, particularly where matters and issues are complex and there are multiple parties. Counsel will want to provide input if they are the advocate at the CMC, only adding to the costs at an early stage. It can be frustrating, having devoted considerable time, effort and cost into its preparation, if the judge does not look at the DRD at the CMC. Professor Mulheron’s report noted this.

After the CMC, parties undertake the disclosure task itself and incur the costs of doing so. In essence, the way the process currently operates, the parties are paying for disclosure on three occasions, so it is not surprising that the pilot has added, rather than reduced, cost in a lot of cases.

Some may consider that the proposed changes to the DRD do not go far enough. The various models add a layer of complexity, which, when dealing with multi-party cases, is onerous. Perhaps they can be simplified further and/or a level of flexibility afforded for cases which do not necessarily fit the norm.

The reform of the pilot was never going to be an easy task as it is intended to effect a cultural change. The CPRC meeting on 5 June 2020 noted this and commented that the pilot had “not yet had the time to bed in, partly because of the lengthy period of time between the preparatory stages of a claim in the Business & Property Courts and the trial, as well as the fact that many cases settle before they reach that stage. Indications are that, although slow, the approach is beginning to change”.

The committee observed that the mere fact the pilot is being extended cannot endorse its success or otherwise.

The pilot needs further work, as Professor Mulheron recognised. In the explanatory note to her latest report, she laid down a marker that further detailed feedback was needed. It has already been 10 months since the questionnaires that formed the basis of the report were completed and attitudes and views will of course have evolved since then. She is currently surveying the judiciary.

Further time is required for the changes to bed in and for feedback to develop the pilot scheme. As practitioners, we need to persevere. It will not be easy but, as American author H Jackson Brown once put it, “in the confrontation between the stream and the rock, the stream always wins – not through strength but by perseverance”.

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