Following extensive consultation, the Business and Property Courts will launch a new two-year pilot scheme on the disclosure of documents in January 2019, designed to streamline the process, introduce greater flexibility and reduce the cost and complexity of disclosure.
The Property Litigation Association (PLA) was one of several organisations to provide input to the Disclosure Working Group and its draft Practice Direction and Disclosure Review Document, which will inform the pilot.
Many of the PLA’s proposed changes to the disclosure pilot have been adopted, a move which has been applauded by Mathew Ditchburn, chair of the PLA’s law reform committee. He described the disclosure pilot as “hugely important, marking a sea-change in the way that the disclosure of documents is approached by the courts”.
The new pilot promotes a menu of options so that disclosure is tailored to the kind of case that is being litigated, rather than standard disclosure being chosen through default, which can result in large amounts of irrelevant documents. Parties will be required to persuade the court to order one of five models, ranging from basic to extended disclosure.
A key recommendation by the PLA was that the procedure for extended disclosure should be broken down into stages. Presented in the form of a ‘step guide’, this would provide clearer guidance and remove previous inconsistencies.
The PLA drew attention to the fact that the new procedure would considerably extend the timetable between statements of case and the case management conference so that the latter will need to be listed later than currently.
The PLA also recommended that provisions be added to prevent companies from avoiding the disclosure of adverse documents by deliberately arranging for an individual without knowledge of those documents to instruct lawyers. In response, the working group has added a definition of what ‘aware’ means in respect of both individuals and organisations to avoid this situation.
The PLA’s Mathew Ditchburn concluded: “The new disclosure pilot and documents should provide greater clarity and guidance when processing cases in the Business and Property Courts, giving users a better choice and more closely aligning disclosure requirements to individual cases.
“Full credit to the Disclosure Working Group who have put so much energy into pushing forward this major piece of reform and making it a reality.”