A new pilot scheme will launch on 1 January 2019, aiming to address concerns about the current excessive costs, scale and complexity of disclosure.
The Civil Procedure Rule Committee has approved the rules governing a proposed pilot on disclosure. Subject to ministerial consent, the pilot scheme will launch in January across the Business and Property Courts in London, Bristol, Cardiff, Birmingham, Manchester, Leeds, Newcastle and Liverpool.
A working group on disclosure was set up in 2016 to identify problems with the current system and propose practical solutions which, if successful, may be extended to other jurisdictions.
Concerns with the current system:
- Standard disclosure often produces large amounts of wholly irrelevant documents, wasting time and costs.
- Due to a lack of judicial resources, standard disclosure has often become the default option in the absence of agreement between the parties.
The disclosure pilot will introduce key changes, including:
- the practice direction will clearly state the principles upon which disclosure is based
- standard disclosure has been removed in its current form and its replacement (Model D) will not be regarded as the default form of disclosure
- both parties and their lawyers have a duty to cooperate to promote the reliable, efficient and cost-effective conduct of disclosure
- parties have a duty to disclose known adverse documents in all cases, irrespective of whether an order to do so is made (this duty has been strengthened and is now wider than the obligation under Part 31)
- parties should meet, discuss and complete a joint disclosure review document (DRD) after closure of statements of case, and before the case management conference
- parties will be required to give estimates of the likely costs of disclosure when filing the completed DRD.
Before the launch, a disclosure working group will run a series of presentations with users and the judiciary to help ensure that all are ready to work with the new rules in the new year.