The Disclosure Working Group has proposed further changes to the Disclosure Pilot operating in the Business and Property Courts of England & Wales. The Disclosure Pilot (as set out at Practice Direction 51U) commenced in 2019. It was recently confirmed that it would be extended until 31 December 2022.
The proposed changes, published by the DWG yesterday, are designed to enhance the Disclosure Pilot further to feedback solicited in early 2021 by the Chancellor of the High Court. The key proposed changes are as follows:
- The introduction of a lighter touch process for "Less Complex Claims", defined as claims whose "nature, value, complexity and the likely volume of Extended Disclosure may not benefit from the full procedure" set out in PD 51U. The changes presume that a claim valued at less than £500,000 will meet this criteria.
- The court's role in the Disclosure Pilot would be somewhat recast. For example, unless it is sought by way of a formal application, the changes envisage "Disclosure Guidance" being given "on the papers" rather than at a hearing. Also, the changes expressly recognise the right of the parties to agree changes to the Disclosure Review Document timetable (provided there is no impact on the timing of a CMC). On the other hand, the changes acknowledge that parties should seek the court's guidance where they believe their opponent "is proposing a list of issues that is far too complex to serve as a List of Issues for Disclosure" (being perhaps cognisant of McPartland v Whitehead in which Sir Geoffrey Vos, the previous Chancellor, criticised the parties for identifying 16 Issues for Disclosure when there were really only three).
- Claimants would share their proposals as to disclosure models at the same time as serving their draft List of Issues for Disclosure. This streamlines elements of the process which are currently staged.
- The addition of guidance around the use of Model C disclosure. Parties' proposals for Model C disclosure "should be limited in number, focused in scope and concise". Parties should not use Extended Disclosure requests using Model C in a "tactical or oppressive way".
- The inclusion of express recognition that disclosure in multi-party cases may warrant a bespoke approach. For example, the parties may agree that one party's disclosure need not be given to all other parties.
The proposed changes were submitted to the Civil Procedure Rules Committee on 9 July 2021 and are due to be formally approved in September 2021. Subject to the approval of the Justice Minister, the proposed changes may therefore come into force some time in autumn.
"All users are encouraged to continue to provide feedback in relation to the pilot which seems to be encouraging a more focused approach to disclosure." (Chancellor of the High Court, Sir Julian Flaux)