To combat widespread concerns that the cost of disclosure remains disproportionately high, a radical reform of the procedural step of disclosure of documents has been proposed. A mandatory two year pilot scheme is set, subject to ministerial approval, to be introduced in the Business and Property Courts on 1 January 2019.
A working group set up in May 2016 found that, in recent years, the volume of data to be disclosed has vastly increased; often to unmanageable proportions. Further, the menu of disclosure options introduced as part of the Jackson reforms has rarely been used by the parties or the courts, with standard disclosure remaining the default option.
The working group concluded that the current regime, which was originally designed for paper disclosure, is not fit for purpose when dealing with electronic disclosure. It was decided that a new procedural rule and guidelines would be needed to achieve a wholesale cultural change.
The Civil Procedure Rule Committee approved a new Rule and Practice Direction on 13 July 2018. This provides for:
- Initial disclosure at an early stage. Key documents necessary to understand a party's case will now need to be disclosed with the statements of case in most cases.
- Standard disclosure will no longer be the default option.
- The parties will need to discuss and complete a joint Disclosure Review Document prior to the case management conference (CMC). The parties will need to list the key issues in dispute, exchange proposals for “Extended Disclosure” (including which Disclosure Models should apply for which issue) and share information about how documents are stored and how they might be searched and reviewed.
- At the CMC, the court will consider which of the five “Extended Disclosure” models (Models A to E) will apply to which issue. The models range from no disclosure (save for known adverse documents) for a particular issue, through to the widest form of "train of enquiry" disclosure.
Although the aim is to make disclosure more proportionate, the disclosure obligations are no less onerous. The duties of the parties and their lawyers in relation to disclosure are now expressly set out in the Practice Direction and include a duty to preserve documents and to avoid providing documents to another party that have no relevance to the issues (termed 'document dumping') . Further, the duty to disclose known documents that are adverse to a party’s case has been strengthened.
The Business and Property Courts encompass the Technology and Construction Court (TCC) in London together with the TCC in Birmingham, Bristol, Cardiff, Leeds, Liverpool, Manchester and Newcastle. If these changes are embraced, the disclosure pilot scheme could therefore have a dramatic effect on construction litigation which is typically document heavy and usually involves many complex issues.