31 January 2019

New Year, New Disclosure!

We are now a month into the Disclosure Pilot Scheme (the “Pilot"), which came into force on 1 January 2019. The Pilot will operate (with limited exceptions) for two years in various Business & Property courts around the country and seeks to revolutionise the way parties deal with disclosure in proceedings; standard disclosure is no more!

What do you need to know?

Preservation of documents

As soon as you think you may be involved in proceedings in one of the courts in which the Pilot applies, you are now under a strict obligation to preserve all relevant documents (both helpful and unhelpful to your case). This includes an obligation to inform all relevant employees and third-party agents of their obligations, as well as to suspend all document deletion/destruction processes.

Communication with your opponent

The court rules, as well as the Disclosure Review Document (“DRD”), a new document to be filed under the Pilot, envisage and encourage significant engagement between the parties both before and during proceedings.

Further, parts of the DRD relate to the kinds of documents that parties hold and how these will be disclosed. This will require input, not only from the parties themselves, but also legal advisors and, in many cases, specialist E-Disclosure firms. Indeed, it may be sensible to get such firms involved as soon as possible.

Initial Disclosure

The Pilot provides that a party needs to serve, with its statement of case, copies of "the key documents on which it has relied (expressly or otherwise) in support of the claims or defences advanced in its statement of case" as well as “the key documents that are necessary to enable the other parties to understand the claim or defence they have to meet".

This means that you now need to be ready to disclose documents from the outset of any claim. However, you will not be required to search for documents that you have not already looked for as part of the preparation of your statement of case.

Parties may agree to dispense with Initial Disclosure but will need to be ready to justify their reasons for dispensation to the court. It may be appropriate to dispense with Initial Disclosure where you have already provided most of the documents that would comprise Initial Disclosure and/or there is a large amount of documents to be disclosed. It is worth noting that Initial Disclosure is not required where it would involve a party providing more than 1000 pages of documents or 200 documents.

List of Issues

A key part of the Pilot is that disclosure orders will be made from a menu of "Model" options on an issue-by-issue basis ("Extended Disclosure"). Where parties seek the court's approval for Extended Disclosure, it is critical that they have sought to agree the list of issues for disclosure as soon as possible. It may be that there is already a list of issues in play which can be expanded into a list of issues for disclosure. Either way, parties will need to be able to persuade a court that it is "appropriate" for any such requested "Model Order" to be granted.

Transitional Arrangements

There are no transitional provisions under the new rules meaning that from now on, parties should arrive at a claim's first CMC having sought to comply with the Pilot.

Where a claim has been issued prior to 1 January 2019 but a CMC has still not taken place, the parties may not yet have undertaken many (or even any) of the steps required under the new regime. Whilst the parties cannot be criticised for not doing things they were not obliged to do in 2018, courts (especially the Chancery Division) will expect parties to have considered (and possibly subsequently to have implemented) the provisions of the Pilot.

What next?

There are a number of moving parts to the Pilot and it is likely that understanding of some areas will develop as both litigants and the courts get comfortable with the new process. In any event though, the Pilot has arrived and parties need to make sure they have done their utmost to comply with it; failure to do so might result in the court opting to utilise its new sanctions under the Pilot!

Further, whilst currently not applicable to proceedings issued in the county courts, watch this space to see if the Pilot’s remit is extended…

If you would like to know more about the Pilot or if we can assist in any other way, please do not hesitate to contact Anna Mullins on [email protected] or Fred Bowman on [email protected].

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