Think of a fairly common situation; you receive an email from a third party with three colleagues in copy, you forward this email to your colleagues with comments, one responds and you then reply to the third party. Later, a dispute between your company and the third party arises.
When you consider that this short exchange alone created more than 15 documents between you and your colleagues it begins to explain how the disclosure exercise in an electronic age is so time consuming and costly; even utilising the increasing numbers of electronic tools available to reduce and streamline the process.
The mandatory Disclosure Pilot Scheme (the “Pilot”), which came into force on 1 January 2019, aims to make the disclosure process more efficient, flexible and therefore more cost effective. It provides a new mindset for the disclosure process and will require both litigants and practitioners to revise their approach to documents when a dispute arises.
- The Pilot applies to new and some current proceedings within the Business and Property Courts in the Rolls Building (London), Birmingham, Bristol, Cardiff, Leeds, Liverpool, Manchester and Newcastle, subject to certain exceptions for particular types of cases and particular lists.
- Except in certain circumstances, parties will need to accompany their initial statement of case (either Particulars of Claim or Defence) with the key documents on which they rely, and which are necessary for their opponent to understand the case they need to meet. This is termed Initial Disclosure.
- Parties are under a continuing obligation to disclose ‘known adverse documents’. An organisation will be ‘aware’ if “any person with accountability or responsibility…for the events or the circumstances which are the subject of the case, or for the conduct of the proceedings is aware”, including people who used to hold such a position.
- If a party wants any additional disclosure, it will need to obtain the Court’s approval for Extended Disclosure. Extended Disclosure is ordered by reference to the Issues for Disclosure. Any Extended Disclosure on an issue will be ordered by reference to one of five disclosure models, Models A to E (Model A being no order for disclosure, increasing through to Model E being wide, search-based disclosure).
- Where Extended Disclosure is sought, the parties will need to complete the new Disclosure Review Document.
- There is no right to any Extended Disclosure, parties will need to justify why it is needed.
- Express duties have been set out for parties and their lawyers, for which see more below.
The Pilot codifies a number of duties, applicable both to litigants and their lawyers.
For litigants there are duties to:
- preserve potentially relevant documents in its control;
- disclose known adverse documents;
- comply with any order for disclosure;
- undertake searches in a responsible and conscientious manner;
- act honestly in relation to the disclosure process and reviewing documents disclosed; and
- use reasonable endeavours to avoid providing irrelevant documents.
These duties apply pre-action and are accompanied by potential sanctions for non-compliance, including in costs.
Things to think about when faced with a dispute to ensure you keep on top of the Pilot
Whether you are bringing or defending a claim, thought will need to be given at the outset to the impact of the Pilot. Some of the key points to consider are:
- In which Court is the case likely to be issued? There will need to be different approaches taken to disclosure depending on whether the claim falls within or outside the Pilot.
- What are the potential sources of documents and what data is likely to exist? These have always been important to consider at an early stage but the preparation of the Disclosure Review Document makes early consideration all the more vital.
- Preserving potentially relevant document sources including halting any routine document destruction processes. Again, this is not new, but has more emphasis under the Pilot.
- Who are the relevant people who either have or had accountability or responsibility for the events which are the subject of the dispute, or the conduct of the proceedings? They will need to be notified of the requirements to preserve documents and are also those who will need to be asked about any known adverse documents. Remember that this might include former employees, agents, and third parties.
- What searches have been undertaken? It is sensible to keep a log of searches undertaken with sufficient detail. The level of detail the Courts require is likely to become clearer over time. However, be aware that it may be appropriate for the lawyers conducting the case to be involved in determining what, if any, searches should be conducted; to ensure the approach taken is appropriate.
- Who is the most appropriate person within the organisation to coordinate the disclosure exercise? The more continuity there can be here, the easier the process is likely to be. It is likely to be helpful in many cases to also have internal IT personnel involved in the process.
- What technology solutions can be implemented to streamline the process? The Pilot expects that technology will be used where possible.
There will need to be continuing dialogue between opponents on disclosure during the proceedings, but by taking the right steps early litigants can make sure they are in the best possible position as far as disclosure is concerned. Involvement of lawyers at an early stage can also help ensure your litigation strategy and disclosure are aligned.
As the Pilot has only just come into force, there will be a period while litigants and practitioners get used to the new requirements and we can expect further discourse as to what constitutes compliance with certain obligations. This is not the first attempt at reform of the disclosure process but if Court users and the Court itself embrace this Pilot it may well be the start of a new era as far as disclosure is concerned.