UK: Time For An Overhaul – A Proposal To Update The Disclosure Regime In Civil Litigation

Last Updated: 12 January 2018
Article by Joseph Rossello and Aleks Valkov

The Disclosure Working Group (DWG) has proposed amendments to Part 31 of the Civil Procedure Rules following concerns about the "perceived excessive cost, scale and complexity of disclosure". We look at the proposals set out in its report, which are to be introduced in a pilot scheme in the Business and Property Courts.

Given the predominance of electronic data as the primary medium for sending and storing information, and the amount of data that now exists, the DWG remarked that the current disclosure rules are simply "not fit for purpose". The DWG announced its proposal on 2 November 2017, with the intention that it would become a mandatory pilot scheme for all cases in the Business and Property Courts.

As part of the pilot, practitioners can expect that the court will have a greater hand in the form of the disclosure order. In particular, the court will examine proposed disclosure orders more closely, even if the parties are agreed. Both the court and the parties need to carefully consider what is the most cost-efficient and proportionate disclosure order needed to resolve fairly the issues in the case.

Fundamentally, the disclosure process is going to change. The proposal introduces Basic Disclosure, which will occur when a party files its statement(s) of case. Basic Disclosure requires the parties to disclose certain key documents at the outset, unless certain limited exceptions apply, including where Basic Disclosure involves providing more than 500 pages of material. The expectation is that this material will allow the other party to better understand the case they are required to meet.

If a party is seeking disclosure beyond or in addition to Basic Disclosure, the party will need to request Extended Disclosure. The court will only order Extended Disclosure after taking into consideration a number of factors, including: reasonableness and proportionality, the likelihood that documents with probative value exist, and the nature and complexity of the issues, amongst other things.

Parties will be required to consider a range of disclosure options as part of Extended Disclosure. Whilst the disclosure menu options were introduced with the Jackson reforms in 2013 (see CPR 31.5(7)), it was the DWG's view that parties have failed to adequately take advantage of the alternatives to standard disclosure. The court will now expect a more focused approach; one aimed at aligning the disclosure more closely to the issues in the case.

The disclosure options are broken down into five different disclosure models (Models A to E), unless a bespoke model (i.e. not one of Model A to E) would be more appropriate. Such a model would only be ordered in exceptional cases. The options can be summarised as follows:

  • Model A: No order for disclosure;
  • Model B: Limited disclosure, requiring disclosure of only key documents, including any adverse documents;
  • Model C: Request-led search-based disclosure, amounting to disclosure of particular or narrow classes of documents;
  • Model D: Narrow search-based disclosure, akin to the current standard disclosure regime. This will only be ordered it if it is reasonable and proportionate; or
  • Model E: Wide search-based disclosure, which is an extension on Model D, requiring additional searches to be conducted that may lead to identifying further documents for disclosure.

Standard disclosure will no longer be the "usual" disclosure order. Whilst something similar to standard disclosure could still be ordered (Model D), it should not be expected to be ordered in every case.

Where the disclosure agreed requires document searches to be undertaken, the parties must seek to agree on matters that would reduce the burden and costs of the disclosure exercise. This includes the use of technology-assisted review software and techniques. Following the decision in Brown v BCA Trading Limited & Ors [2016] EWHC 1464 (Ch), parties can expect the court to order, if it is appropriate, a technology-assisted review as part of the disclosure process, even in the absence of the parties agreeing to use such technology.

The court will have the flexibility to give further detailed directions in respect of disclosure in order to address matters such as the timing of searches and whether sampling would be appropriate.

The proposal also expands on the practitioners' duty to liaise and co-operate with the lawyers on the other side. This co-operation will have to occur far earlier than under the current regime. Rather than prepare and exchange an Electronic Disclosure Questionnaire (EDQ), the parties are to complete a Disclosure Review Document (DRD). Unlike the EDQ, completing a DRD will be mandatory and will need to be continuously updated throughout the course of the matter. The DRD will cover matters previously included in the EDQ together with setting out:

  1. the main disclosure issues in the matter,
  2. the proposals for disclosure (including which of the disclosure options or models is to be adopted),
  3. details about the way in which documents are stored, and
  4. how they might be retrieved and reviewed.

The parties are encouraged to attempt to agree disclosure matters between themselves and avoid case management conferences being overtaken by disclosure issues. The intention is that disputes that cannot be resolved between the parties should be dealt with in a 30-minute Disclosure Guidance hearing, to be held before or after a case management conference and only after the parties certify that a genuine effort was made to resolve the dispute. It is envisaged that these hearings will be informal and only attended by the professionals in charge of the disclosure exercise in order to ensure maximum efficiency and costs saving.

Previously, parties were required to consider and finalise a Form H budget before coming to grips with the scope of the disclosure exercise. Often budgeting was undertaken without the collection of documents having been completed or before any sampling of the data had been undertaken. Frequently the information used to create the Form H budget substantially underestimated what needed to be done to complete the disclosure review. Parties are either then stuck with an inadequate budget or need to apply to the court for an order seeking to vary the budget. In order to address this, the proposal envisages that parties will only provide a budget in respect of disclosure after the DRD has been agreed and generally only after the disclosure order has been made. The court may also provide for a different timeframe for filing the budget if it deems it necessary to do so. Conversely, the court may now be far less willing to accept amendments to the budget in respect of disclosure.

The new proposal also explicitly preserves the requirement of a party to disclose documents that are adverse to its case. This requirement is irrespective of whether the court has made any disclosure orders or indeed even when there is no order for disclosure. One of the reasons parties choose to litigate in this jurisdiction is due to the requirement of a party to disclose documents adverse to its own case and the perception of fairness imputed into the legal process as a result.

One interesting proposal relates to the preservation of documents. Currently, PD31B.7 requires the parties' legal representatives to notify their clients about the need to preserve disclosable documents, including electronic documents which would otherwise be deleted in accordance with a document retention policy or the in the ordinary course of business. Whilst far less strict than the "document hold" regime that applies the US, it amounts to a need to alter automatic document deletion or destruction protocols that may be in place. The proposal would impose additional obligations on the parties, including the need to send a written notification to all relevant employees to preserve documents and to provide written confirmation that necessary steps to preserve documents have been attended to. Indeed, a party is to confirm in writing when serving the Particular of Claim or Defence that steps have been taken to preserve relevant documents.

Not all of the provisions of the old CPR 31 are being swept away. The intention is to retain provisions such as those relating to pre-action disclosure, use of disclosed documents (the collateral use rule), as well as orders for third party disclosure.

This pilot scheme will be made by way of a practice direction. Changes to CPR 31 will only be considered after an evaluation of the pilot in practice. It is expected that the pilot will commence after April 2018 and it will be mandatory for all cases in the Business and Property Courts. At the time it is introduced, the pilot will apply to cases in which no disclosure order has been made at the time the practice direction comes into force. However, it may also apply to cases with existing disclosure orders, if the current orders are set aside.

For further information about the proposed pilot scheme, please refer to the Judiciary Website.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Mishcon de Reya
Clyde & Co
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Mishcon de Reya
Clyde & Co
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions