Why is the new Disclosure Pilot Scheme essential for 2019?

17 Dec 2018

On 13 December 2018, GC100 (the association for FTSE100 general counsel) held an event at international law firm, Simmons & Simmons to discuss the upcoming implementation of the Disclosure Pilot Scheme. The event brought together the GC100, members of the legal profession and senior judiciary who discussed why the new reforms to the rules on disclosure are essential if the Courts in England and Wales are to remain attractive to domestic and international litigants.

From 1 January 2019, the majority of commercial proceedings in the Business & Property Courts will be subject to an entirely new and innovative set of rules on disclosure. The Disclosure Pilot Scheme, which was approved earlier this year, is the product of a two-year review led by the judiciary, in partnership with the legal profession and court users, to tackle the increasing burden and cost of giving disclosure in commercial cases. Simmons & Simmons partner, Ed Crosse was one of the four members of the Disclosure Working Group responsible for drafting the new Pilot Scheme.

Keynote speaker at the event, Dame Elizabeth Gloster, DBE PC said: “The implementation of the new pilot Disclosure Practice Direction, replacing the former CPR 31 is an exciting and important innovation for international and national commercial dispute resolution in England and Wales.” Dame Elizabeth also described the ‘critical’ importance of modernising the court’s procedures to ensure that they facilitate the use of technology to deal with the massive proliferation of data. Dame Elizabeth spoke of the need to avoid “defaulting without thought to the old standard disclosure template and the unnecessary harvesting of countless, useless documents which the judge will probably never read.”

A panel of representatives from the Disclosure Working Group, who were responsible for drafting the new Pilot Scheme, explained how the pilot will seek to bring about a change of culture amongst legal representatives, parties and judges, and ensure that disclosure in business litigation is issue based and focused on sensible cooperation.

In a subsequent panel discussion, GC100 in-house speakers were unanimous in their agreement that, whilst there is a need to take a more focused and efficient approach to disclosure, the ability to obtain wide-ranging disclosure of key adverse documents in appropriate cases is rightly seen, internationally, as a key attraction of conducting disputes in England and Wales, which must and will be preserved by the Disclosure Pilot Scheme.

Speaking on the proposals, Simmons disputes partner, Ed Crosse, said:

“It was a striking feature of the work undertaken by the Disclosure Working Group, just how engaged the profession, clients and the judiciary were in not only identifying and agreeing on the problems with disclosure, but also proposing solutions; a genuine partnership, which has resulted in a set of rules that should herald a new and modern approach to disclosure. The Disclosure Pilot seeks to address what has, until now, been said by some to be the ‘Achilles heel’ of litigating in England and Wales. Other jurisdictions are following this development with interest.”

“Rule change alone, however, cannot solve the problem. For these reforms to make a difference, parties, the profession and judiciary will need to get behind them and embrace the new approach to disclosure that it requires. The Pilot offers a unique opportunity to address the challenge presented by the proliferation of data and places, at its heart, the use of technology to process and review documents, recognising that whist technology has been a big cause of the problem, it also presents part of the solution.”

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