- within Technology, Environment and Law Department Performance topic(s)
Practice Direction (PD) 57AD came into force on 1 October 2022 and governs disclosure in the Business and Property Courts of England and Wales (B&PCs). As it is now three years since implementation of the PD, and six years since the launch of the pilot it substantively replaced, views are being sought on how well the PD is working in practice and whether changes should be made to the current disclosure regime.
The Disclosure Review Working Group was established in the summer of 2024 with the stated aim of reviewing the operation of PD 57AD and, in that context, the use of Technology Assisted Review (TAR) and Artificial Intelligence (AI) in disclosure exercises. The Working Group consists of Mr Justice Butcher (as Chair), Mr Justice Waksman, Master Kaye, and Professor Rachael Mulheron of Queen Mary University of London.
Its remit is to obtain evidence about disclosure in the B&PCs, and in particular whether the disclosure reforms embodied in PD 57AD have achieved their original goals of (a) saving costs, (b) improving the accuracy of disclosure, (c) reducing the burden on the courts, and (d) improving cooperation. As part of the review, the Working Group will also consider whether and when to recommend changes to the current disclosure regime.
Earlier this week, the Working Group published an online survey, which is stated to be the first step in obtaining information about how disclosure under PD 57AD is operating in practice, along with views on the disclosure regime and potential alternatives.
The survey seeks views on various aspects of disclosure under PD 57AD, including:
- Whether, in general terms, the reforms embodied in PD 57AD have been a success.
- Whether the scheme of disclosure in PD 57AD should be retained (with or without modification) or whether it would be better to return to the application of CPR 31.
- Whether the costs of disclosure have increased or decreased since the introduction of PD 57AD and to what extent, as well as the primary reasons for any increase/decrease.
- The extent to which the Less Complex Claims regime is being used.
- The extent to which Initial Disclosure is being provided.
- Whether the obligation to disclose Known Adverse Documents is sufficiently clear and should be retained.
- Whether the document preservation obligations are too onerous.
- Various issues concerning the List of Issues for Disclosure, including its utility, the ease with which parties agree the List of Issues, and whether there should be any numerical limits to the number of Issues allowed in any given case.
- Whether the obligation to provide a disclosure certificate is sufficiently clear, particularly in circumstances where disclosure is provided in tranches.
- Various issues concerning the Models for Disclosure, including parties' experiences of agreeing the Models, whether the process of choosing Models is desirable, and whether there should be a default position whereby all disclosure is provided using one or more identified Model(s) unless the court orders otherwise.
- Various points concerning the Disclosure Review Document (DRD), including whether the requirement to cooperate and seek to agree the DRD works in practice.
- The extent to which Disclosure Guidance Hearings are being used, and their utility.
- The extent to which orders under paragraphs 17 and 18 of PD 57AD (non-compliance with Extended Disclosure and variation of Extended Disclosure orders) are being sought, and their utility.
- Whether more can be done to promote greater cooperation in the disclosure process.
- The use of TAR and AI in disclosure, including the extent to which these technologies are currently being used, judicial attitude to their use, and whether a "best practice guide" on the use of TAR and/or AI should be incorporated into PD 57AD.
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.
