Plans have been announced for a two year pilot scheme on disclosure for the Business and Property Courts (the Commercial Court, TCC and Chancery Division and the Financial List as well as the Business and Property Courts in Birmingham, Manchester, Leeds, Bristol, Cardiff, Newcastle and Liverpool). It is anticipated that changes to the CPR will be sought in spring next year, if the plans go through.

The proposals are radical; aimed at ensuring that parties can no longer simply default to using standard disclosure, the changes are intended to ensure greater take-up of the "menu" of options for disclosure which was introduced in the Jackson reforms of 2013 (and which, it seems, both the parties and judges have been reluctant to adopt so far) to ensure proportionality, as well as ensuring the rules are fit for purpose in an electronic age. 

The key changes are as follows: 

  • "Standard disclosure" (that is, documents which assist or harm the case of any of the parties to the dispute) as the default option will disappear and there will be no one "default" order.
  • The proposals begin with the concept of "Basic Disclosure" of the documents on which a party intends to rely (and which are necessary to understand the case) which will be given with Statements of Case. The parties (or the court) can agree to dispense with or defer this requirement and it will not apply where complying with it would involve a party providing over 500 pages of documents. A search is not required although the parties may undertake one. Importantly, basic disclosure does not require a party to disclose documents that are adverse at the outset of a claim (i.e. with statements of case).
  • If the parties wish to go beyond Basic Disclosure, they will need, at the same time, to state their intention to do so and (unless choosing Model A (see below)) to agree a draft List of Issues for Disclosure and produce a joint Disclosure Review Document ("DRD"), which will replace the Electronic Disclosure Questionnaire and must be produced after the close of Statements of Case and before the CMC. The proposals are intended to set out a framework for parties and advisers to co-operate and engage on disclosure before the first CMC in order to agree a proportionate approach to disclosure.
  • The DRD will include proposals for "Extended Disclosure" (and if so, on what Disclosure Model for which issue). There will be five "Extended Disclosure" Models as follows, (with Model D in general terms equivalent to the old Standard Disclosure):

Model A – No order for disclosure.

Model B – Limited disclosure – disclosure of the key documents on which each party relies and which are necessary to understand the case to be met (in contrast to Basic Disclosure this includes disclosure of documents adverse to the disclosing party).

Model C – Request led search disclosure – disclosure of particular documents or narrow classes of documents by reference to a request set out in the DRD or defined by the Court.

Model D – Narrow search based disclosure, with or without narrative documents – documents likely to support or undermine the disclosing party/other party's case in relation to one or more of the Issues for Disclosure. The Court will be required to be satisfied that use of the model is reasonable, appropriate and proportionate.

Model E – Wide search based disclosure (essentially train of enquiry disclosure) – this will only be ordered in an exceptional case. Bespoke models may be ordered but again this will be exceptional.

  • The courts should be proactive and only accept the models proposed by the parties where persuaded it is appropriate to do so in order to resolve the Issues for Disclosure. The Court has considerable flexibility to apply different models to different parties and to different Issues.
  • Form H Costs Budgets in relation to disclosure will be completed after the disclosure order is made (although costs estimates should be provided in the DRD).

Comment

The duty to disclose known documents that are adverse to the disclosing party remains a core duty, and applies even if the court makes no disclosure order.

The proposals also enable parties to seek guidance from the court at a Disclosure Guidance Hearing either before or after the CMC and set out express duties on disclosure applying to parties and their legal advisers to cooperate with each other and assist the court with disclosure, with sanctions for noncompliance.

Further details can be found here: https://www.judiciary.gov.uk/announcements/disclosure-proposedpilot-scheme-for-the-business-and-property-courts/

Although the models themselves are not radically different from the current menu options, the rules steer parties away from the ability to adopt Standard Disclosure as the default. They also require the parties to give thorough consideration to the correct model for disclosure at an earlier stage.

Despite the fact that the proposals will involve a "wholesale cultural change", it is recognised that the 'cards on the table' disclosure regime in England & Wales can be a key selling point for parties choosing a forum for their dispute, and in the right case, full disclosure (akin to the current standard disclosure order) will still be ordered. The proposals which seek to limit and control unnecessarily expensive trawls for documents are likely to be welcomed by professional services firms, although in some specific instances, such as audit cases, it may be in the auditors' interest to push for fuller disclosure. Comments from interested parties are sought by the end of February 2018, and we will be seeking your views on the proposals as well as your experiences of the current regime.