Year three of the disclosure pilot – what next?

Guest post by Oliver Shipway, principal associate at Eversheds Sutherland

Shipway: Further clarifications needed

The disclosure pilot, introduced for an initial two-year period in January 2019 under practice direction 51U, sought to address one of the central conundrums in modern civil litigation: how the courts should balance the historic ‘all cards on the table’ approach to evidence in this jurisdiction with the vast proliferation of electronic documents in the modern era, leading to expensive disclosure exercises which undermine the cost-effective resolution of disputes.

The pilot sought to introduce wholesale cultural change, but feedback and case law to date suggest it has not yet achieved the desired simplicity and savings in time and cost. It has been extended for another year to the end of 2021 and discussions on possible amendments later this year are ongoing.

The new PD sought to provide a framework for tailored disclosure orders reflecting the requirements of individual cases and resulting in more proportionate disclosure exercises.

A new concept of initial disclosure to accompany the statements of case became the default, with post-case management conference (CMC) extended disclosure only available on request and with approval from the court.

The scope of extended disclosure is to be determined according to the issues for disclosure (IFD), each with its own model for disclosure (A-E).

Each model involves differing levels of search and review, with active encouragement to use model C (requests for specific documents or classes of document) rather than model D (akin to standard disclosure).

Negotiation of the detail is set within a rigorous pre-CMC timetable centred around the disclosure review document (DRD), a new creature of the pilot, and overlaid by enhanced duties of cooperation to drive the desired wholesale cultural change.

The devil, as ever, has been in the detail. Various changes were proposed in late 2020, which came into force on 6 April 2021.

These amendments clarify certain points, for example: that known adverse documents, which need to be produced whether extended disclosure is ordered or not, should be provided following the CMC, not with initial disclosure; the proper scope of model C, which often in practice has looked more like model D; and greater flexibility around the onerous requirement to provide document preservation notices.

In terms of the further possible changes, the disclosure working group recognises the formulation of the list of issues for disclosure (LOIFD) is a particular area of challenge, as illustrated in the decision of Sir Geoffrey Vos in McParland v Whitehead [2020] EWHC 298 (Ch).

The now Master of the Rolls showed that 16 IFD could be reduced to three and the PD provides that these are not the same as the issues for trial and should be determined by reference to the available documentation.

Although the decision in McParland helped clarify the approach, other changes to the process may assist parties in drafting the LOIFD.

For example, an earlier exchange of section 2 of the DRD, commonly referred to as the ‘data map’, could help to focus parties’ minds on the available documentation. At present, the deadline for exchange of the document is 14 days before the CMC, which is well after the exchange of the LOIFD and means that the negotiations about the IFD risk occurring in a vacuum.

Further, the scope of model C requests remains an area of some difficulty in practice and an earlier exchange of the data map would allow the parties to make better-informed model C proposals by reference to the available documents.

The later exchange also reduces the time available for the parties to scrutinise the detail of their respective searches and crystallise the outstanding issues before the CMC.

Amendments are being considered regarding the application of the pilot to multi-party claims, which present particular difficulties, and to lower-value claims.

In terms of the disclosure models, the recent clarifications regarding model C are welcome, although parties should be aware that for full guidance it is necessary to look at both the explanatory notes to the pro-forma DRD and the rules in the PD.

Further clarification would be welcome regarding model A and its role as an extended disclosure model. In particular, its use suggests that some IFD may not require disclosure, which may cause confusion about the proper scope of the IFD.

Finally, the concept of narrative documents with model D continues to cause difficulties in practice and the future approach is under consideration.

Amendments due later this year will be met with interest. This is a living pilot and it is welcome that it continues to evolve following feedback and consultation.

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