The Civil Procedure Rule Committee has given its final approval to the two-year disclosure pilot scheme for cases in the Business & Property Courts.
Subject to ministerial approval, the pilot will commence on 1 January 2019, before which there will be roadshows across the country led by members of the Rolls Building disclosure working group (DWG), which is chaired by Dame Elizabeth Gloster.
Its work reflects the changing nature of disclosure, from a largely paper-based exercise to one driven by digital documents, and included a substantial consultation exercise.
The sub-committee that drafted the rules, which were approved at the committee’s recent meeting, comprised Chief Master Marsh, Mr Justice Knowles CBE, Vannina Ettori (legal advisor to the Chancellor of the High Court) and Ed Crosse, immediate past president of the London Solicitors Litigation Association and a partner at City firm Simmons & Simmons.
The key elements of the pilot include:
- A number of clearly stated ‘disclosure duties’ on the parties and their advisers, backed by sanctions for non-compliance. For example, a duty not to ‘dump’ irrelevant documents on the other side, and a duty on advisers to liaise and co-operate with their counterparts in relation to disclosure;
- Rather than ‘standard disclosure’, there will be five disclosure “models” that allow for greater flexibility around the manner and extent of disclosure to be given in each case;
- The models range from an order that only ‘known adverse documents’ be produced (without the requirement for a search to be undertaken), through to orders requiring a party to undertake wide-ranging searches for documents applying the broadest test of relevance. Parties in all cases will be required to disclose ‘known adverse documents’ as a minimum;
- Judges are expected to be proactive and robust when deciding which disclosure model(s) is/are appropriate and not unquestioningly accept the parties’ choice; and
- The existing electronic disclosure questionnaire will be replaced to ensure that the right questions are asked by the parties in relation to e-disclosure and the use of technology.
Mr Crosse said: “The new pilot scheme is much needed and will be a success provided clients, the legal profession and judges truly embrace the new rules.
“Change is never easy and, at least initially, it will require an investment of time and focus by all for the rules to bed down. No matter how they are drafted, rules can only achieve so much.”
Mr Crosse argued that the problems disclosure was causing risked harming the appeal of the English courts, and that the pilot would counter this.
“We are one of only a few legal systems in the world that embrace a search-based, ‘cards on the table’ approach to disclosure. The ability to force the other side to interrogate its data and produce both the ‘good and bad’ documents is a key attraction of our legal processes.
“It is our duty, however, to ensure this system is both proportionate and fit for purpose in the modern digital age.”