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Update on the operation of the Disclosure Pilot Scheme (“Disclosure Pilot”) – July 2021

Disclosure Working Group (DWG)

On 5 February 2021, the Chancellor invited a number of professional associations to provide their suggestions for possible further changes to five key areas of the Disclosure Pilot.

There was an excellent response to the request, which included responses from a number of individuals and law firms.

Having received this further feedback, the DWG considered the drafting points arising and prepared revised versions of PD51U, the Disclosure Review Document (“the DRD”) and some of the appendices.  These were submitted for consideration by the Civil Procedure Rules Committee (“CPRC”) on 9 July 2021.

The principal changes proposed include:

  1. An extension of the Disclosure Pilot until 31 December 2022 to enable the amendments to bed down and to provide an opportunity to make further improvements to the scheme on the basis of any further feedback received
    This proposal has been approved by the Master of the Rolls and the Minister and will come into effect in line with the 1 October 2021 common-commencement date. So too has a previous amendment to paragraph 9.2 of PD51U
  2. The creation of a separate regime within the pilot for ‘Less Complex Claims’ which is described in a new Appendix 5 to PD51U, together with a simplified version of the DRD and guidance notes in two new Appendices 6 and 7
  3. Multi-party cases will still operate within the spirit of regime set out in the Disclosure Pilot. However, there is now an express recognition that disclosure in multi-party claims is likely to need a bespoke approach from the court – addressed in paragraphs 1.11 and 13.5 of PD51U
  4. Modifications to the provisions relating to lists of issues for disclosure, Model C and Model D (with regard to Narrative Documents) with a view to making the process of agreeing lists of issues simpler and less contentious and discouraging excess when Model C is used. The approach to the exclusion of narrative documents has been softened to prevent greater expense being incurred on the exclusion of documents than is incurred on leaving them in.  These changes have involved a careful review of the way the pilot operates leading to amendments to paragraphs 7 to 10 of PD51U and the DRD and guidance notes
  5. Disclosure Guidance. Paragraph 11 of PD51U has been redrafted to remove the emphasis on the need for a hearing. Further, a new paragraph 6A explains that ‘court control’ over disclosure can be provided by guidance or by the court resolving differences in the traditional way by a party bringing forward an issue for determination by way of an application notice.

The extension of the Disclosure Pilot (opens in a new tab) by one year has been formally approved and will take effect on 1 October 2021.

As regards the further amendments to the Disclosure Pilot, these have been approved in principle by the CPRC at the meeting on 9 July 2021, subject to some suggested amendments to be considered by the DWG. Further modifications have been made by the DWG in response, and are included within the draft documents below. It is proposed that the CPRC will reconvene in September 2021 and, if in agreement, formally approve all remaining changes.

Pending any such approval by the CPRC and ultimately by the Minister, the proposed changes remain in draft and have no formal status. Users are nevertheless invited to consider their purpose and effect and, where appropriate, may (by agreement) propose to the Court that any of these changes be applied to their existing case.

Draft amended Disclosure Pilot documents

The proposed changes are detailed in the documents with the changes marked up. As stated, these are provided by way of update to users and have no formal status pending approval by the CPRC and the Minister.

  1. PD51U – (draft) (Word document, opens in a new tab)
    PD51U – (redline) (PDF, opens in a new tab)
  2. Appendix 2 – DRD and guidance notes (draft) (Word document, opens in a new tab)
    Appendix 2 – DRD and guidance notes (redline) (PDF, opens in a new tab)
  3. Appendix 4 – Modified version of the Disclosure Certificate (redline) (PDF, opens in a new tab)
    Appendix 4 – Modified version of the Disclosure Certificate (Word document, opens in a new tab)
  4. Appendix 5 – Less Complex Claims (draft) (Word document, opens in a new tab) 
  5. Appendix 6 – Disclosure Review Document for Less Complex Claims (new) and Appendix 7 – Guidance notes for LCC DRD (new) (Word document, opens in a new tab)

The Chancellor of the High Court, Sir Julian Flaux, said: “The Disclosure Working Group is extremely grateful to everyone who took the time to provide feedback and, most importantly, ideas and proposals for further change.

“The feedback was constructive and has been instrumental in helping to shape the further refinements now put forward by the DWG which should improve the operation of the pilot.

“All users are encouraged to continue to provide feedback in relation to the pilot which seems to be encouraging a more focused approach to disclosure.”

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