1 January 2019 marked the arrival of the new Mandatory Disclosure Pilot Scheme. The reforms seek to address concerns about the onerous and disproportionate costs of the current disclosure process, and aims to avoid parties over-loading their opponent in voluminous and often irrelevant disclosure.
The pilot scheme is set to run for two years in the Business & Property Courts, but is likely to be rolled out more widely to other courts if it is a success (including across County Courts).
The judicial explanatory note states that the Disclosure Review Document (“DRD”) is intended to:
(1) facilitate the exchange of information and provide a framework for discussions around the initial scoping of disclosure;
(2) help the parties to agree a sensible and cost-effective approach to disclosure and identify areas of disagreement; and
(3) provide the court with parties’ proposals on disclosure, agreed or otherwise, so the court can make appropriate case management decisions at the case management conference.
What does this all mean in practice?
The traditional 'Standard Disclosure' will no longer be the default option in litigation. Parties may now seek 'Extended Disclosure' from 5 different 'Models'. The 5 Models are set out in a menu of options, such as disclosure only of adverse documents which are known to exist (Model A), down to an extended version of standard disclosure (disclosure of documents which help or hinder a parties case) (Model E). The parties are required to agree which Model should apply for each issue in dispute and have an express duty to cooperate and engage before the first Case Management Conference at Court, where the Court will review the parties' proposals and can refuse or change the approach.
Instead, parties will now (with some limited exceptions) be required to give 'Initial Disclosure' (capped at 200 documents or 1000 pages) and provide key documents on which they rely in support of their claim or defence, and which are necessary for the other party to understand the case against them, at the same time as they serve their statement of case.
The duty on parties to preserve documents has also been enhanced. A party must preserve any relevant documents in its control and, once proceedings have commenced, must then disclose all known adverse documents to the other side (unless privileged), even without a court order. These duties also apply to parties who are aware that they may become a party to proceedings.
For corporates, the relevant test for the awareness of known adverse documents is that of "any person with accountability or responsibility ... for the events or the circumstances which are the subject of the case, or for the conduct of the proceedings". Corporate clients should be advised that reasonable steps must be taken to check the position with anyone who had such accountability or responsibility, but has since left the organisation.
Furthermore, parties' legal representatives are also now expressly subject to these duties, and further additional duties under paragraph 3.2 of the Disclosure Practice Direction (DPD). The duties of legal representatives also apply where they have been instructed by a client who knows it may become a party to proceedings in contemplation or on foot. It will be critical for practitioners to read and understand the DPD in order to discharge their disclosure obligations and to assist their clients and the court in meeting the aims of the new regime.
Mr Justice Robin Knowles, a member of the working group that drafted the new rules, said: ‘The message came through loud and clear from clients that if this does involve some more frontloading [of disclosure costs], better that than the waste of the past. The message from clients is that we have got to make this work. This is a chance for [England and Wales] to lead the way.’ The judge added that he was confident that judges will get behind the new disclosure scheme and play their own part in the ‘cultural shift’. He added that a disclosure provider has already been educating judges on the technology available. From 1 January, a two-year mandatory pilot of the new disclosure regime will begin in the Business and Property Courts in the Rolls Building in London, and regional centres