Disclosure Changes: What Is Changing?

Disclosure Changes: A Welcome Move Towards More Cooperation

Since the current disclosure process was first introduced in the courts of England and Wales over 18 years ago, there have been huge increases in the amount and volume of data used by businesses. With this in mind, the Disclosure Working Group has been given the go-ahead, subject to Ministerial consent, to implement a pilot scheme with the aim of bringing the disclosure process in line with today’s digital world, promoting engagement and refocusing disclosure on the issues in a case.

Currently, standard disclosure is the go-to approach in courts, meaning that parties are required to disclose all documents on which they rely, or which adversely affect or support its or another party’s case. This can be an invasive, expensive and long-winded process, which was not designed for the abundance of electronic communications which we deal with today. While other options for disclosure are available, the lack of across-the-aisle discussion around the topic means that they are rarely used.

The pilot scheme will last for two years starting on 1 January 2019 and is expected to affect business and property courts in the Rolls Building (London), as well as in Bristol, Birmingham, Cardiff, Leeds, Liverpool, Manchester and Newcastle. During this time, ‘standard’ disclosure will be replaced with the new procedures, ‘basic’ and if deemed necessary, ‘extended’ disclosure.

For both parties, basic disclosure will be the first port of call, where they will be required to disclose a limited number of key documents that they rely on at the point they serve their statements of case, in order for the other party to understand the case. After this, and ahead of the case management conference, the claimant will produce, and parties will seek to agree, a list of disclosure issues. From this, the parties will produce a Disclosure Review Document, in order to help the court decide which form of extended disclosure is necessary and the issues it should cover. Legal advisers should also note that they will be required to certify to the court that they have explained the obligations, options and costs of disclosure to their client.

The revised options will comprise of five models: model A is for “No Order for Disclosure”, model B is defined as “Limited Disclosure”, referring to known adverse documents and model C is a “Request-led search-based disclosure”, which comprises of documents requested by another party and initially set out in the Disclosure Review Document.

Additionally, model D will be comparable to the previous model of “Standard Disclosure” in which a party shares all documents to support or oppose their own case or that of another party, following a reasonable and proportionate search. This will normally exclude “Narrative Documents” (background or contextual documents). Lastly, model E will be reserved for exceptional circumstances and defined as “Wide search-based disclosure”. In these instances, all standard disclosure documents will be included, along with “train of enquiry” documents that may lead to the identification of further documents for disclosure. This will include Narrative Documents and if this option is selected, separate cost orders may arise for undertaking this exercise rather than simply “costs in the case”.

These changes make for a very positive starting point when it comes to shaking up the systems of disclosure throughout England and Wales. Their effectiveness and practicality will only truly be determined once we see them in practice, and there will undoubtedly be some challenges to overcome in the early stages of the pilot.

However, the changes should mean that processes are not only simplified but are also tailored to be more effective. With the emphasis now being placed upon engagement across the aisle, both parties will need to operate with greater transparency. Furthermore, the change will require clients to be more involved in the process and discuss matters in greater detail from the initial stages, something which has previously been left to the legal counsel.

The revisions to the system will also aid the practicality of disclosure processes. Use of technology is being promoted and, similarly, the costs associated with this process will be diminished by controlling the level of disclosure. Previously, adhering to standard disclosure has been a labour-intensive exercise, often requiring thousands of documents to be studied. The new variations of extended disclosure models will mean that both parties will be able to keep a firmer handle on expenditure.

As an aside, the original proposal for the pilot had also required a party seeking to withhold documents, for example when claiming privilege, to describe the grounds with “reasonable precision” rather than casting a general net over privileged classes of documents.  Fortunately, this has not made its way into the most up to date proposal.

Article provided by Shakespeare Martineau

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James advises on resolving claims through the Courts, through alternative dispute resolution, including international arbitration, or where settlement is a commercially desirable for his clients, mediation.

His range of work includes contractual and shareholder disputes, professional negligence claims and also ones involving injunctive relief, including the recovery of company databases and enforcing restrictive covenants.

James is driven by a strong desire to secure the best result for his clients and has been commended for providing robust and clear advice and for his innovative approach.

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