Pilot Scheme for new disclosure rules approved by the Civil Procedure Rule Committee

31 Jul 2018

The Civil Procedure Rule Committee (CPRC) has confirmed its final approval of the Disclosure Pilot Scheme, which has been two years in the making. Subject to ministerial approval (which will be sought later this year) the scheme will apply from 1 January 2019 to new and existing proceedings in the Business & Property Courts across England and Wales, bar some specific areas such as competition, admiralty and public procurement claims, and claims proceeding in the Intellectual Property Enterprise Court.

Our disputes partner, Ed Crosse, was one of four responsible for drafting the new rule.

Simmons & Simmons partner, Ed Crosse comments: “The new pilot scheme is much needed and will be a success provided clients, the legal profession and judges truly embrace the new rules. Change is never easy and, at least initially, it will require an investment of time and focus by all for the rules to bed down. No matter how they are drafted, rules can only achieve so much.”

“The success or otherwise of this scheme in my view turns on whether we seize this opportunity to take a new, modern, efficient and robust approach to disclosure. Other jurisdictions are following this initiative with interest and no doubt will seek to emulate it; but that takes time.”

“These new rules should help ensure that our courts continue to be regarded as innovative, and highly attractive for domestic and overseas clients with disputes to resolve, especially in a post-Brexit era.”

The key changes introduced by the Pilot are:

  • the imposition of express duties on parties and their representatives, backed by sanctions for non-compliance
  • initial Disclosure of documents relied upon and necessary to understand the case is to be given by each side with their statement of case
  • no automatic right to further disclosure, but instead a framework for each party to propose orders for Extended Disclosure if appropriate
  • parties will be obliged at the outset to identify the key Issues for disclosure and for all disclosure proposals to focus on these
  • five new models for Extended Disclosure will replace the existing menu of disclosure options under CPR Part 31.5(7), only three of which will require a party to conduct a search for documents
  • a new court document called Disclosure Review Document, or DRD, will replace the electronic disclosure questionnaire. This will provide a framework for discussions between the parties about the processing and review of e-disclosure and the use of technology where possible
  • unlike the existing CPR Part 31 Rule, the new Practice Direction is focused on electronic rather than paper-based disclosure throughout.

Between now and 01 January 2019, members of the DWG will be participating in a series of presentations and roadshow events to outline and explain the thinking behind the new Practice Direction to users, the profession and the judiciary. The draft is subject to ministerial approval, but we can be reasonably confident that these new rules will be implemented substantially in the form of the CPRC approved draft.

The new rule was drafted by a sub-committee of the Disclosure Working Group (DWG), chaired by the Rt. Hon. Dame Elizabeth Gloster DBE. The DWG was formed by the judiciary in response to widespread concerns expressed by court users and the profession regarding the perceived excessive costs, scale and complexity of disclosure in English litigation.

The drafting committee comprised The Hon. Mr Justice Knowles CBE, Chief Master Marsh, the legal adviser to the Chancellor of the High Court and Simmons & Simmons partner Ed Crosse (assisted by two professional support lawyers at Simmons, David Bridge and Kirsty Oliver). Initial proposals were published in draft for consultation on 02 November 2018, and since then the Practice Direction (PD) has been amended substantially to take account of feedback from over 35 organisations and firms.

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