In January 2019 we saw the introduction of the two-year Disclosure Pilot Scheme in the Business and Property Courts.
What is the Disclosure Pilot Scheme?
The Disclosure Pilot Scheme is aimed at addressing the costs and burdens of the document disclosure process in civil proceedings. In summary, the Pilot means that parties to litigation should provide limited disclosure at the beginning of the proceedings (‘Initial Disclosure’) and further disclosure later in the proceedings only if it is ordered (‘Extended Disclosure’).
Initial Disclosure is a new concept which requires parties to provide with their statements of case (i.e. at the very beginning of court proceedings) copies of key documents they rely on in support of their case. Initial Disclosure is not intended to be overly burdensome as it should generally comprise no more than 200 documents or 1000 pages. As such, Initial Disclosure will not be required in a number of complex commercial disputes. Parties may also agree (or the court may direct) that Initial Disclosure will not be followed.
Extended Disclosure is another new concept which will apply in addition to, or instead of Initial Disclosure. Under Extended Disclosure, parties must provide further documents in line with one (or more) of five “Disclosure Models”.
The Pilot also imposes new express disclosure duties on the parties and their lawyers, including a duty to disclose known ‘adverse documents’, to act honestly and to avoid providing documents that have no relevance (i.e. no ‘document dumping’). Parties are also under a duty to preserve any relevant documents in their control and this duty is engaged as soon as a party “know[s] that it may become a party to proceedings”. The Pilot therefore means that parties must consider disclosure at a much earlier stage in proceedings than they would previously have done.
The Pilot still has another 11 months left to run (until the end of 2020) but, at its half-way point, evidence is suggesting that it has been welcomed and it seems likely that it will become a permanent fixture in the Civil Procedures Rules after 2020. Therefore, if you haven’t already, now is a good time to start preparing.
How can you prepare?
To meet the increased document preservation requirements, it may be a worthwhile:
- having protocols in place to assist with the quick and easy identification of potentially relevant documents in the event that litigation is intimated; and
- having detailed instructions in place which can be circulated as and when needed to present (and former) employees and agents, notifying them of their document preservation duties and to suspend any document destruction policies.