In November 2016, we reported on Lord Justice Jackson's comments at the Law Society's Commercial Litigation Conference in October 2016 that enough use was not being made of the menu of options for disclosure under the current Civil Procedure Rules. The disclosure working group chaired by Lady Justice Gloster, which had been set up earlier that year to consider the current rules on disclosure and how they could solve the issue of the increasing cost and complexity of disclosure, has now reported on its conclusions.
It was accepted by the working group that insufficient use has been made of the menu of options for disclosure under the current regime - by both the profession and the judiciary - as the tendency of the parties and the court has been to opt for the tried and tested 'standard disclosure' option. The working group has therefore proposed a new pilot for disclosure seeking to address this issue. The proposed pilot, which is due to commence in the recently launched Business and Property Courts and will last for a period of two years, sets out a process for 'Basic Disclosure' and 'Extended Disclosure'.
Basic Disclosure requires the parties to disclose, with their statements of case, the key documents on which they rely and those necessary to enable the other parties to understand the case they have to meet (assuming these do not exceed 500 pages), and there is no obligation to conduct a search as part of that process.
Those parties wishing to expand disclosure beyond Basic Disclosure (or as an alternative to it) can seek Extended Disclosure. The five new models for Extended Disclosure are, in general terms, as follows:
- Model A: No order for Disclosure - albeit the duty to disclose known adverse documents still applies.
- Model B: Limited Disclosure - disclosure of the key documents on which a party relies and the key documents that are necessary to enable the other parties to understand the case they have to meet.
- Model C: Request-led Search-based Disclosure - disclosure of particular documents or narrow classes of documents relating to a particular Issue for Disclosure (as defined in the draft Practice Direction and broadly speaking the key issues in dispute).
- Model D: Narrow Search-based Disclosure, with or without Narrative Documents - disclosure of documents which are likely to support or undermine a party's own case or that of another party in relation to one or more of the Issues for Disclosure, with a reasonable and proportionate search being required.
- Model E: Wide Search-based Disclosure - disclosure of documents which are likely to support or undermine a party's case or that of another in relation to one or more of the Issues for Disclosure or which may lead to a train of inquiry which may then result in the identification of other documents for disclosure. This model is only to be ordered in an exceptional case.
The term 'standard disclosure' no longer appears, which seems to be a warning to parties that there is to be no 'standard' process and the appropriate disclosure option for each case should be considered on a case-by-case basis. It should be noted that, whichever disclosure route is taken, there is still an obligation on the parties to disclose known adverse documents.
Even if agreement has been reached between the parties as to the appropriate model for disclosure, the parties should not expect the court to simply rubber stamp that agreement. Under paragraph 6.3 of the draft Practice Direction "The Court will only make an order for Extended Disclosure where it is persuaded that it is appropriate to do so in order fairly to resolve one or more of the Issues for Disclosure". In order to inform this process, in circumstances where Extended Disclosure is sought, the parties are required to prepare a 'List of Issues for Disclosure' and a 'Disclosure Review Document' ahead of the CMC.
The proposed pilot is open for discussion and comment until the end of February 2018, including the draft Practice Direction and Disclosure Review Document which can be found here. It will then be passed to the Civil Procedure Rules Committee in March/ April 2018, with the pilot to commence "as soon as reasonably practicable thereafter".