The Civil Procedure Rules Committee has recently approved the launch, from 1 January 2019, of a two-year disclosure pilot scheme in the Business and Property Courts across England and Wales. The scheme aims to be the beginning of a regime change which encourages a modern, efficient and cost-effective approach to disclosing relevant documents during litigation.
The Disclosure Pilot Scheme
The scheme will apply to both new and existing proceedings in the Business and Property Courts, except for some specific areas such as competition and admiralty claims.
The proposed changes aim to provide solutions to tackling disclosure, which traditionally has been a complex and expensive procedure. Although ministerial approval of the scheme is still awaited, the scheme itself is unlikely to change and drafts of important documents have been made available to members of the legal profession in anticipation of the launch. Before the pilot begins, a Disclosure Working Group will embark on a roadshow to explain the proposed changes to many users, both in the legal profession and in the judiciary.
The key changes:
• A new Practice Direction, focusing on electronic rather than paper-based disclosure
• The Disclosure Review Document, which will replace the current Disclosure Report and Electronic Disclosure Questionnaire documents. This will provide a framework for early discussions about the scope of proposed disclosure in any case, and allows parties to agree a cost-effective approach.
• The Disclosure Certificate and the Certificate of Compliance, which enable parties to certify their compliance with the new Practice Direction.
• Express duties for compliance are to be placed on solicitors and their clients.
• Initial disclosure of documents will occur along with statements of case, so that each party can better understand the other’s case.
• Parties will be obliged from the outset to identify and propose key issues for disclosure.
• A complete redrafting of Part 31 of the Civil Procedure Rules has occurred.
• Five new models for Extended Disclosure will replace the current ‘menu’ of disclosure options.
• There will no longer be an automatic right to further disclosure.
• Disclosure Guidance Hearings are to be introduced.
Practitioners and litigants should welcome the pilot scheme as an opportunity to further develop a 21st century approach to disclosure obligations in litigation. The current rules centre on paper-based disclosure, and the advent of increased electronic-based disclosure means that a revamped approach is timely and to be welcomed. However clients, the legal profession and judges alike must engage wholeheartedly with the new scheme to ensure that it works effectively and continues to develop.
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