On 1 January 2019 a new disclosure regime was launched for any matters in the Business and Property Courts. This is set out in CPR51(u) and aims to bring the process up-to-date and encourage greater efficiency.
The primary CPR Rule dealing with disclosure is CPR31. This applies to all multi-track cases apart from personal injury.
CPR31 follows Lord Justice Jackson’s recommendations, which identified two areas in which Standard Disclosure should not be the default position. These were very large cases, or smaller value cases where standard disclosure was likely to be disproportionate.
CPR31 envisaged a menu of options in respect of disclosure models but in practice, standard disclosure has become the default option.This approach was criticised by the lawyers of Ftse 100 Companies hence this new pilot has been introduced.
The pilot scheme applies in all Business and Property Courts of England and Wales. These Courts have effectively replaced the Chancery Division including the Technology and Construction Court. There was very little publicity about the effective abolition of Chancery, it has been referred to as a “stealth reform”.
The aim of the pilot is to stop parties reverting to standard disclosure as a matter of course.
Once proceedings have commenced, a party has to disclose adverse documents unless they are privileged. This could potentially mean disclosing them with your statement of claim because the pilot scheme requires disclosure in two phases:
i. initial disclosure – in short, serving key documents with the statement of case; and
ii. extended disclosure.
Adverse documents do not need to be searched for, so unless you already have it, you do not need to disclose it.
Parties and their legal advisors owe a duty to the Court to take reasonable steps to preserve documents. Lawyers will need to advise clients of this and obtain documentation from them they have been advised of this.
The duty to preserve documents includes a duty to preserve documents which might otherwise be destroyed in accordance with a document retention policy, so any such policy would need to be suspended and all relevant employees need to be notified in writing of the requirement. The key is to take reasonable steps so that agents or third parties who may hold documents on behalf of the client should not destroy or delete documents.
Documents are not limited to paper documents but include social media and e-documents, and includes meta data.
When serving the particulars of claim or the defence, each party must confirm in writing the steps they have taken to preserve documents and parties then have to cooperate with each other in this regard in order to keep disclosure reasonable and proportionate.
Initial disclosure is required of each party when it serves its first statement of case. This will consist of an initial disclosure list containing key documents. Initial disclosure is not required in Part 8 Claims or a Part 7 Claim if the claim form is served without particulars of claim.
The requirement under PD15 for the Claimant to attach copy contracts and standard terms to the particulars of claims is unaffected and continues.
This is a separate subject in itself which will be dealt with elsewhere.
It is considered that parties considering litigation needs to make themselves ‘litigation ready’ in respect of disclosure.
The parties can make requests for extended disclosure and will need a statement of issues and which model of disclosure they propose to follow. The list of issues for disclosure will be a major tactical point in any litigation.
The 5 disclosure models are:
i. known adverse documents;
ii. limited disclosure;
iii. request led search based disclosure;
iv. narrow search based disclosure; and
v. wide search based disclosure.
It is “v” above that is the widest disclosure option and is equivalent to standard disclosure plus. Item “iv” above is the equivalent of old fashioned standard disclosure.
The new disclosure pilot reflects the complexity of disclosure in civil litigation and emphasises the need for very careful analysis of the disclosure requirement before the issue of any proceedings.
This Pilot Disclosure Scheme launched at the beginning of 2019 and it remains to be seen if it will achieve its aim of reducing the scale and cost of disclosure by incorporating new concepts and technologies. Our Commercial Property Litigation Team have represented a vast number of clients in the Business and Property Courts and are able to advise clients and handle any disclosure requirements prior to court proceedings. Please contact a member of the team for more information.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.