Following a seminar held by general counsel and company secretaries for the FTSE100 group of companies (the GC100) on disclosure in April 2016, a disclosure Working Group was set up which was chaired by Lady Justice Gloster.
The Group were tasked with identifying issues with the existing rule and suggesting practical solutions. In doing so, they looked at whether the full menu of disclosure orders under CPR 31.5(7) could be used more effectively by both the profession and the judiciary. It was felt that, despite the Jackson reforms in April 2013, which introduced a variety of possible disclosure orders, standard disclosure remained the default order in most cases. The existing CPR 31 rule was drafted with paper disclosure only in mind (albeit that a practice direction had been added since in an attempt to bring the rule into the 21st century) and an overhaul was needed to deal with the amount of electronic data now involved. The Working Group was also concerned about excessive costs, time and complexity associated with disclosure.
In light of the above and after initial consultation, the Working Group proposal for a new Disclosure Practice Direction for a Pilot in the Business and Property Courts was released on the 2 November 2017. The proposal will replace the existing rule with a list of disclosure 'Models'. The key points are set out below.
Basic Disclosure will be given early, when a party serves its first statement of case (and "statement of case" does not include a claim form without particulars of claim attached). Basic Disclosure requires that key documents relied on by the disclosing party be provided. There is no obligation for the party to conduct a search for documents nor does Basic Disclosure require the disclosure of any adverse documentation. Basic Disclosure is not required if complying with the rule would involve the disclosure of more than 500 pages. It can also be deferred or dispensed with by agreement of the parties – but if the court believes that Basic Disclosure could provide a "significant benefit" any such agreement may be overridden by the court. Basic Disclosure is intended to be straightforward. It may obviate the need for any further disclosure in some cases, although that is unlikely in cases of any complexity.
At the time of serving the statement of case, a party must state whether it is likely to request Extended Disclosure. There are five Models for Disclosure. There is no requirement to detail the potential Model being requested, or the issue in relation to which it is sought at that early stage. The crucial point to note is that there is no guarantee that a court will order Extended Disclosure.
The five Models are;
- Model A – No order for Disclosure.
- Model B – Limited Disclosure. This is essentially Basic Disclosure, plus any documents that the party is aware of that are adverse to their case.
- Model C – Request-led Search-based Disclosure. This involves disclosure of narrow classes of document, or specific individual documents, in response to requests from the opposing party.
- Model D – Narrow Search-based Disclosure. This involves the disclosure of documents which are likely to support or undermine the party's case or that of another party. This Model mirrors the existing standard disclosure rule however has deliberately not been described as such in the draft rule.
- Model E – Wide Search-based Disclosure. This is old fashion train of enquiry type disclosure and will only be ordered in an exceptional case.
There is an obligation to disclose, within 21 days of the first Case Management Conference, any adverse documents that are known to the disclosing party. This obligation arises whether or not Basic Disclosure is given and regardless of any order for Extended Disclosure.
Different models can be requested in respect of each issue (a list of which must be agreed between the parties). The court will decide whether or not to order a particular Model with respect to a particular issue at the first Case Management Conference. It is also possible that different parties will be ordered to use different Models with respect to the same issue, the aim being that truly bespoke disclosure orders can be created for each party. In deciding what order to grant the court will consider whether the requested Model is appropriate to resolve the issue, whilst having regard for the Overriding Objective of the Civil Procedure Rules and other matters such as the complexity of the issues, number of documents, ease of retrieval, cost implications and the financial positions of the parties, amongst others.
At the time of writing the draft rule is only a pilot proposal. It is open for further consultation until the end of February 2018. The aim is that the new rule will be piloted in the Business and Property Courts in the Rolls Building, London and the regions, for a two year period. The draft rule is expected to be submitted to the Civil Procedure Rules Committee for approval by April 2018.