Kerry Underwood

DISCLOSURE PILOT SCHEME: CONSULTATION ENDING 28 FEBRUARY 2018

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A consultation paper:

Judiciary: Disclosure: Proposed Pilot Scheme for the Business and Property Courts

has been published and contains proposals for a mandatory Disclosure Pilot Scheme to run for two years in the Business and Property Courts and the document includes a draft Practice Direction and a draft new Disclosure Review Document to replace the current Electronic Documents Questionnaire.

The above is a link to the whole document and at the end of this piece are links to each individual document, including the draft Practice Direction and a draft Disclosure Review Document and the briefing notes.

Roadshows in Birmingham, Bristol, Cardiff, Leeds, London, Manchester, Newcastle and Liverpool will be staged to allow lawyers to debate the proposals.

Once the consultation has taken place the proposed pilot will be submitted to the Civil Procedure Rules Committee with a view to approval by that body in time for the April 2018 Civil Procedure Rules update.

As the briefing note says, the draft Practice Direction in fact incorporates a draft new rule and a draft Disclosure Review Document.

The key proposals are:

(i) The principles upon which disclosure is based are to be clearly stated.

(ii) What has been termed “standard disclosure” will disappear in its current form; its replacement should not be ordered in every case and should not be regarded as the default form of disclosure.

(iii) The duties of the parties, and of their lawyers, in relation to disclosure should be set out. A duty to cooperate with each other and assist the court over disclosure should be included. The duty of the parties to preserve relevant documents should remain.

(iv) One of the core duties is the requirement to disclose known documents that are adverse to the disclosing party. The PD makes it clear that this duty must be complied with regardless of the type of disclosure order the court makes and applies even if the court makes no disclosure order. The duty has been drafted in this form to meet the concern expressed by the Working Group and consultees about what may be seen as a watering down of the duty to disclose adverse documents.

(v) Save where the parties agree to dispense with this (and subject to a number of other exceptions), “Basic Disclosure” of key/limited documents which are relied on by the disclosing party and are necessary for other parties to understand the case they have to meet should be given with statements of case.

(vi) A search should not be required for Basic Disclosure, although one may be undertaken. It is expected that Basic Disclosure will often not be suitable in the largest cases but, in the more moderate sized claim, it will provide both information to assist in an early understanding of the parties’ positions and will inform cultural change by requiring the parties to consider whether the documents they have are sufficient. In some cases, the initial disclosure that has been provided will be sufficient to enable the claim to go forward without further disclosure being ordered.

(vii) Basic Disclosure does not require a party to disclose at the outset of a claim documents that are adverse. This limitation was the subject of much debate. However, the current draft leaves Basic Disclosure in a deliberately limited form because the duty discussed at (iv) above proves adequate protection against a party ‘sitting on’ known adverse documents.

(viii) After close of statements of case, and before the Case Management Conference, the parties will (using a joint DRD as a framework): (a) list the main issues in the case for the purposes of disclosure (and the matters of common ground); (b) exchange proposals for “Extended Disclosure” (and if so on what Model for which issue(s) (see paragraph 9 and following below); and (c) share information about how documents are stored and how they might (if required) be searched and reviewed (including with the assistance of technology, and if so which). The DRD should be kept updated through the case. It replaces the EDQ. The DRD has been subjected to ‘road-testing’ with a number of law firms by reference to real cases and adjustments have been made to it to take account of feedback.

(ix) At the Case Management Conference, the Court should consider by reference to the DRD which of five “Extended Disclosure” models (Model A to E) is to apply to which issue (or to all issues). The Court should be proactive in directing which is the appropriate Model and should not accept without question the Model proposed by the parties.

(x) The fundamental yardstick for the parties and the Court, throughout, should be what is appropriate in order fairly to resolve the issues in the case. The well-recognised test of reasonableness and proportionality will be applied by reference to defined criteria in the PD which are relevant to disclosure. This test builds upon the overriding objective.

(xi) In order to inform the Court’s decision on Extended Disclosure, the parties should liaise before the Case Management Conference so that the Court can be informed:

(a) of any joint view as to the disclosure model that should apply; and

(b) of the estimated work and cost of using any disclosure model that is proposed by one or more of the parties.

Thus it will be seen, at recommendation (x) above, that there will be five Extended Disclosure models. Those proposed are:

(i) Model A is no disclosure.

(ii) Model B requires disclosure of the documents on which a party relies. It is similar to Basic Disclosure with the important distinction that it requires adverse documents in the hands of the disclosing party to be provided.

(iii) Model C adds to Model B a facility for each party to request from the other any specific disclosure it requires with a requirement to carry out a search and to produce adverse documents.

(iv) What was “standard disclosure”, requiring a reasonable search for documents that support or adversely affect either side’s case, will now be “Model D”. Where Model D is proposed the Court will require to be satisfied that (taken with any further directions: see (vi) below) the model is reasonable and proportionate and appropriate in order fairly to resolve the issue(s).

(v) Model E should be exceptional. It extends the reasonable search required for Model D to documents that may lead to a train of enquiry that may support or adversely affect either side’s case on the issue(s).

In an appropriate case the Court should be prepared to give more detailed directions in relation to Models D and E, so as to direct where searches should be undertaken, and whether, for example, sampling should be used. The parties may convene a Disclosure Guidance Hearing which will be informal, short and generally attended by the lawyers with conduct of the disclosure process.

A bespoke Model (outside A to E) may be ordered in an individual case, but this will be exceptional.

In an appropriate case the Court should be prepared to order that the question of which party bears the cost of disclosure is to be given separate consideration at a later stage.

Generally speaking the separate concept of “inspection” should be dispensed with.

Other more detailed provisions of CPR 31 will remain unchanged (e.g. pre-action disclosure, subsequent use of disclosed documents, orders for disclosure against persons not a party, and others).

 

Also see:

Proposals for Disclosure Pilot for Business and property Courts in England and Wales;

Proposed pilot briefing note;

Practice Direction Disclosure pilot for Business and Property Courts;

Disclosure Review Document.

 

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Written by kerryunderwood

December 5, 2017 at 6:44 am

Posted in Uncategorized

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