Commercial litigators have vented their frustration – and in some cases anger – with the disclosure pilot in the Business and Property Courts, and changes to its rules have been put forward as a result of this and other feedback.
As predicted in May, the Civil Procedure Rule Committee has now been asked to extend the pilot to the end of 2021.
The latest interim report on the pilot by Professor Rachael Mulheron was based on responses to a questionnaire circulated in October last year, nine months after its launch.
Although the report was completed by February this year and discussed by the disclosure working group in June, it has only now been published.
Large majorities told Professor Mulheron the pilot had increased the costs and time spent on disclosure (88%), failed to achieve a culture change (78%) and increased the burden on the courts (71%).
Professor Mulheron admitted that the responses were “frequently quite negative, and sometimes, emphatically, even vociferously, so”.
One solicitor said there had been a culture change – but rather than leading to a greater degree of “co-operation, proportionality and reasonableness” as intended, it meant “parties have more opportunity to argue with each other”.
Another said the new process had been marked by “a high degree of distrust between solicitors, unnecessary position-taking and unending vituperative correspondence… the scheme should be withdrawn without delay”.
A further response stated that “a system that was working fine for the majority of High Court cases has been ruined by the pilot, which appears to have been introduced to accommodate high-value insurance and banking litigation, without any thought for the majority of cases it will impact for which it has no benefit whatsoever”.
Another angry litigator described the pilot as “a further barrier to justice”, which would deter those with claims of around £250,000 from issuing proceedings because of the front-loading of costs.
Only 4% of litigators thought the disclosure pilot had reduced costs, 6% that it had improved the culture and 2% that it had reduced the burden on the courts.
Professor Mulheron, based at Queen Mary University, said in her preface to the report that the nature of the responses could be explained by the timing of the questionnaire, early in the life of the pilot, when its impact on overall costs was “too early to tell”.
There were 71 responses to the questionnaire, 44 from law firms and the rest from individuals.
A large majority (88%) thought the disclosure review document (DRD) introduced by the pilot had increased costs and time, with only 6% saying it had saved them.
Although there was usually agreement by the parties on the need for extended disclosure (84%), a majority (78%) said the parties disagreed on which disclosure model to use.
Two-thirds of lawyers said they had encountered difficulties in the duties placed on them by the pilot to preserve documents.
In a positive response, a majority of litigators (59%) said they believed the threshold set for evaluating at what point the initial disclosure obligation ended, as the larger of 1,000 pages or 200 documents, was appropriate.
Lord Justice Flaux, chair of the disclosure working group, said the rule committee has recently been asked to approve a one-year extension of the pilot to the end of 2021.
The group has also prepared a revised version of PD 51U for consideration by the committee later this autumn as a result of the feedback it has received. The changes include:
- Clarifying when the default obligation to disclose known adverse documents arises;
- Modifying the requirements of and exemptions to initial disclosure;
- Clarifying issues relating to the use of disclosure guidance hearings;
- Confining the obligation to complete the DRD to only those cases where the parties agree that search-based extended disclosure models are required (i.e. models C, D and/or E); and
- Removing the obligation to produce 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.
The rule committee will hear proposals to simplify the DRD as well, including further guidance on when and how it should be completed, and confirmation that it may be modified and/or shortened by the parties for more or less complex cases.
Earlier this month, Professor Mulheron urged courts to “get a handle” on why most solicitors believed the disclosure pilot was not producing cost savings.