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.

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