After a period of feedback ending in February 2018, the Business and Property Courts of England and Wales are expected to launch a pilot scheme for new disclosure rules.

In brief

  • A proposed new regime for disclosure will be trialled in a compulsory pilot scheme in the Business and Property Courts in 2018.
  • The proposals remove any assumption that the current Standard Disclosure will apply and require disclosure to be considered on an issue by issue basis.
  • Feedback is invited on the draft rule and accompanying form until 28 February 2018.

It was announced on 02 November 2017 that a pilot scheme is proposed to launch in 2018 of a new rule on disclosure, published in the form of a draft Practice Direction. The pilot is proposed to run in the Business and Property Courts (including Chancery, the Commercial Court and the Technology and Construction Court).

While the pilot is only a proposal, it has the backing of the Master of the Rolls and is the output of a working group chaired by The Rt Hon. Lady Justice Gloster and a sub-committee involving Mr Justice Robin Knowles CBE, Chief Master Marsh and Ed Crosse, President of the London Solicitors Association and partner at Simmons & Simmons. In reality, the pilot scheme is almost certain to go ahead, though the rule may be subject to some changes following a period of feedback, which is open until 28 February 2018.

What is proposed?

The draft Practice Direction and accompanying form, the Disclosure Review Document (DRD) are worth reading, and can be found on the Courts and Tribunals Judiciary website here, but some of the notable changes include:

  • The duties of the parties, and of their lawyers, in relation to disclosure are expressly set out, including a duty to cooperate with each other and to assist the court over disclosure. There are express sanctions for non-compliance. There is also a duty to disclose known adverse documents, irrespective of whether an order for disclosure is made.
  • Save where the parties agree to dispense with this (and subject to several other exceptions), “Basic Disclosure” of key documents necessary for other parties to understand the case they have to meet will be given with statements of case. A search is not required for Basic Disclosure, although one may be undertaken.
  • As part of their discussions on disclosure the parties must identify issues in the case that might require something more than Basic Disclosure (Extended Disclosure) and then propose a model for each issue from a menu of 5 options (Models A to E). There is no right to, nor a presumption in favour of, an order for Extended Disclosure; the parties must apply for and persuade the court that such an order is necessary.
  • The models range from an order for no disclosure in relation to a particular issue, through to the widest form of disclosure, requiring the production of documents which may lead to a train of enquiry. The form of disclosure where each party must carry out a reasonable search for documents supporting or adversely affecting any party’s case remains an option as Model D, but the phrase “standard disclosure” will not be used, emphasising that there is no default order for disclosure.
  • At the Case Management Conference, the court will decide whether Extended Disclosure is required and if so which Model of Extended Disclosure is to apply to each issue.
  • Parties need to estimate costs of their own and the other sides proposals for disclosure for the first CMC, but Form H Cost Budgets in relation to disclosure are to be completed only after an order for disclosure has been made.

For more detail on the proposed draft rule, see our article New draft rule on disclosure unveiled.

What it means for you

The draft rule to be the subject of the pilot scheme is a radical departure from the existing rule. Initial feedback from in-house lawyers has been very positive, but the opportunity to suggest changes to the detail is open until the end of February 2018.

Understood and used to full effect, the new regime should make it much easier to limit disclosure to those areas where it is really justified. Parties that take the time to understand the rule and consider what documents they have and what they seek from the other side will be able to get far more bespoke orders for disclosure. There should be a real chance to avoid unnecessary disclosure and reduce the costs of the exercise, but it requires some early thinking and genuine efforts to engage with the other side.