Countdown to the Disclosure Pilot 2019

We are now just a few months away from the introduction of the new mandatory Disclosure Pilot in the Business & Property Courts, due to come into force in January 2019.  As reported in our article last year, the Pilot is the product of a working group established in 2016 to address the ever-increasing cost and complexity of disclosure.

Having reviewed and consulted on the Pilot, it has now been refined and finalised, with many of the provisions in the draft substantially unchanged (albeit with some revisions to the terminology, such as 'Basic Disclosure' now being termed 'Initial Disclosure'). 

In particular, the concept of providing key documents with statements of case remains (Initial Disclosure) and there are still five models for Extended Disclosure:

  1. Model A: Disclosure confined to known adverse documents
  2. Model B: Limited Disclosure
  3. Model C: Request-led search based disclosure
  4. Model D: Narrow search-based disclosure, with or without Narrative Documents
  5. Model E: Wide search-based disclosure

Parties will need to justify their position if they seek any of the Extended Disclosure models, as there is a clear desire to move parties away from wide searches and the historic 'standard disclosure' default approach.  For example, in the Disclosure Review Document ("DRD") which the parties are required to discuss and complete ahead of the first CMC if seeking Extended Disclosure, it provides that "Broad and wide-ranging formulations such as "any or all documents relating to…" should not be used".  It should also be noted that it is possible to have different Models for different issues in the case.

There are a number of relatively prescriptive stages which have to be followed after statements of case have closed and before the CMC.  These are usefully summarised at the start of the DRD.  For example, within 28 days of the final statement of case, each party should state in writing whether or not it is likely to request Extended Disclosure to include any of Models B, C, D or E on one or more of the issues.

The Pilot will not disturb an order for disclosure made before its commencement (unless varied or set aside), but will apply to all other[1] new and existing cases in the Business and Property Courts in London, Bristol, Birmingham, Cardiff, Leeds, Liverpool, Manchester and Newcastle.  The Pilot will not at this stage apply in the County Court.

The pilot represents a significant change in the disclosure process and parties should familiarise themselves with its requirements as soon as possible.  It should be noted that this is a mandatory pilot and therefore, unlike many of the other pilots which operate across the court system, parties litigating in the relevant courts do not have the choice to opt out.

A full copy of the draft Practice Direction and related documents (including the DRD) can be found here.

[1] With some limited exceptions

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