On 31 July 2018, it was announced that the CPR Committee (CPRC) has given approval for a two-year disclosure pilot scheme to commence on 1 January 2019. The mandatory pilot scheme, which is subject to ministerial consent to be sought later in 2018, will apply across the Business and Property Courts in the Rolls Building in London and in Bristol, Cardiff, Birmingham, Manchester, Leeds, Newcastle and Liverpool.
The disclosure pilot scheme has arisen following the establishment of a disclosure working group chaired by Lady Justice Gloster, which identified a number of key defects in the current disclosure regime. The working group concluded that ‘wholesale cultural change’ is required to the current disclosure regime which, it said, can only be achieved by the widespread promulgation of a completely new rule (CPR 31) and guidelines on disclosure. The working group made proposals which were subject to consultation until February 2018.
How the scheme will work
Under the new rules, standard disclosure in its current form will be removed and its replacement will not be regarded as the default form of disclosure. There will generally be a first stage of initial disclosure. Permission for extended disclosure in addition to, or instead of, initial disclosure may be sought. There are five proposed models (A–E) for extended disclosure, including no order for disclosure, limited disclosure, request led search-based disclosure, narrow search-based disclosure and wide search-based disclosure including train of enquiry documents.
Following the receipt of feedback during the consultation period, revisions have been made to the proposals. In particular, the approved, revised version of the rules clarifies the position in relation to adverse documents. This had been identified during the consultation as a key area of concern. Therefore, to be a ‘known adverse document’ (other than privileged documents) a party must be aware of it without undertaking any further search. A company will be aware of such a document if any person, within the company or organisation with accountability or responsibility for the events relating to the case, or conducting proceedings, is aware. Reasonable steps must be taken to check on the position in relation to such persons who have since left the company.
The working group’s proposals also included a requirement to explain ‘with reasonable precision’ the grounds upon which a document is being withheld from production, which would typically be on the grounds of privilege. Concerns were expressed during the consultation that this may be more onerous than the current approach. The revised version of the rules has deleted reference to ‘reasonable precision’ in this context and a claim to privilege may be made in a form that treats such documents as a class.
There have also been revisions clarifying the scope of legal representatives’ disclosure duties and the relevant knowledge in relation to when the duty to preserve documents is triggered.
Further guidance
LexisPSL Dispute Resolution subscribers can read further guidance in Practice Note: Business and Property Courts—Disclosure pilot scheme.
If you are not a subscriber, you can take a free trial here.
