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Disclosure Pilot Scheme To Take Effect As Permanent New Practice Direction From 1 October 2022, With No Substantial Changes – Civil Law



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The Disclosure Pilot Scheme, which has been operating in the
Business and Property Courts since January 2019, is to be
incorporated into the Civil Procedure Rules permanently, with only
minimal changes. From 1 October 2022, it will take the form of a
new Practice Direction (PD) 57AD “Disclosure in the Business
and Property Courts”, which is substantially in the form of
(and replaces) the current PD 51U. The Chancellor of the High Court
and Master of the Rolls have welcomed the move, as
announced here.

The adoption of the Disclosure Pilot on a permanent basis
follows a process earlier this year in which the Disclosure Working
Group sought views on the scheme’s operation to date,
including whether it has achieved the key aim of reducing the time
and costs involved in the disclosure process. The results of that
process have not been published but, anecdotally, there is a great
deal of scepticism among practitioners as to whether the Disclosure
Pilot has led to any costs savings, particularly in complex
disputes, given the high costs of negotiating the list of issues
for disclosure and agreeing appropriate disclosure models for each,
not to mention reviewing documents to assess whether they
correspond to the particular issues in question.

The Chancellor has recognised that the Disclosure Pilot has
resulted in a front-loading of costs, but stated that it has also
led to a dramatic decline in specific disclosure applications and a
“far more focused and efficient approach to the disclosure
process generally”. The Master of the Rolls has described the
new PD as reducing the need for disclosure where it is unnecessary,
and increasing the parties’ focus on the real issues in the
case.

The minor changes that will be included in the new PD57AD can be
viewed in a redline comparison to the current PD51U here. They include:

  • Part 8 Claims: Confirmation that PD57AD does
    not apply to Part 8 claims unless specifically ordered (in which
    case the court can adapt the procedure as appropriate to the
    proceedings)

  • Known Adverse Documents:

    • Confirmation that Known Adverse Documents must be disclosed
      even if the issue to which they are relevant is not one of the
      issues in the List of Issues for Disclosure

    • Clarification of the timing for disclosure of Known Adverse
      Documents, by removing wording that arguably suggested this is
      required as soon as proceedings are commenced


  • Model C requests (ie for particular
    documents or narrow categories of documents): Confirmation that a
    party may not only address Model C requests to other parties but
    also propose the use of Model C for its own disclosure

  • Certificate of Compliance: Confirmation that
    this is not required in cases where a Disclosure Review Document
    does not need to be prepared

  • Disclosure Certificate:

    • Amendment to the wording regarding the duty to contact any
      relevant former employees for the purpose of identifying Known
      Adverse Documents, which now accurately reflects the scope of the
      duty (in PD57AD) – ie to “take reasonable steps to
      check the position” with such employees, rather than to
      receive positive confirmation from all of them

    • Confirmation that a party’s legal representative may sign
      the Disclosure Certificate provided that they have explained to the
      party its significance and have written authority to sign on the
      party’s behalf


  • Less Complex Claims: The default threshold
    below which a simplified procedure will apply (subject to party
    agreement or court order) has been increased from £500,000 to
    £1 million claim value

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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