The Disclosure Pilot Scheme (“the Scheme”) has been in operation in the Business and Property Courts since January 2019 and is set out in Practice Direction 51U of the Civil Procedure Rules. The Scheme was originally intended to run for two years, however it has now been extended for a further year and will continue until the end of 2021. Anna Barnes, Partner, explains what the Disclosure Pilot Scheme is.
The intention behind the Scheme was to initiate a ‘culture change’ in attitudes towards disclosure and to ultimately introduce a simpler and more cost effective disclosure regime. It introduces new concepts of Initial Disclosure, Extended Disclosure and Known Adverse Documents.
Outline of Key Duties
The parties to a litigation case to which the Scheme applies are subject to certain duties to ensure that all information is disclosed in accordance with the rules. Some of these key duties include:
- Initial Disclosure – the parties, at an early stage of proceedings, are required to disclose key documents which they rely on and are necessary to understand the claim;
- Disclosing any Known Adverse Documents (unless documents are privileged) at the outset. These are documents that contradict or materially damage the disclosing party’s argument on an issue, or may support the opposing side’s position;
- Extended Disclosure – All parties are now required to state in writing whether they intend to request Extended Disclosure within 28 days of the final Statements of Case.. The court will consider any such requests at the Costs and Case Management Conference. There are five different disclosure models that the court can adopt and different models can be applied to different Issues for Disclosure. The parties are encouraged to agree the Issues for Disclosure and parameters for Extended Disclosure ahead of the Costs and Case Management Conference by seeking to agree the content of a Joint Disclosure Review Document by complying with the various steps set out in Practice Direction 51U.
- The parties are still obliged to take reasonable steps to preserve documents in their control that may be relevant to any issues in the legal proceedings, as soon as a party knows it is or may become a party to proceedings that have been commenced or that it may become a party to proceedings that may be commenced and to act honestly in relation to the process of giving disclosure and reviewing documents disclosed by the other party.
The extension to the Scheme will allow further data to be gathered, but there has inevitably been a mixed response to the viability and success of the Scheme. Amendments to the Scheme are currently being considered by the Civil Procedure Rules Committee.