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

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DISCLOSURE WORKING GROUP (“DWG”)

Professor Rachael Mulheron[1] was kind enough to take on the task of reviewing the Disclosure Pilot in PD51U which took effect on 1 January 2019. This has involved a huge amount of time and effort by her for which the DWG is very grateful.

Professor Mulheron’s Third Interim report dated 25 February 2020 (“Third Report”) analysed responses to a questionnaire that practitioners were asked to complete. 71 responses were received. Due in part to Covid-19, it has taken some time to bring the report forward for consideration by the full DWG. A meeting ultimately took place in June 2020. The Third Report accompanies this note.

A sub-group of the DWG has carefully considered the drafting points that arise from feedback in the Third Report and elsewhere and has prepared revised versions of PD51U (“the PD”) and the Disclosure Review Document (“the DRD”) for consideration by the Civil Procedure Rules Committee (“CPRC”).

Proposed amendments to the PD

The principal points the amendments to the PD address are:

  • Clarifying when the default obligation to disclose known adverse documents arises;
  • Modifying the obligation to serve document preservation notices on current and former employees;
  • Modifying the requirements of and exemptions to Initial Disclosure;
  • Conforming the Disclosure Review Document (“DRD”) with the PD in relation to Model C disclosure;
  • Clarify issues relating to the use of Disclosure Guidance Hearings;
  • Confining the obligation to complete the DRD to only those cases where the parties agree that search-based Extended Disclosure Models are required (i.e. Models C, D and/or E);
  • Removing the obligation to produce a List of Issues for Disclosure and the DRD if both parties have agreed that Extended Disclosure is to be restricted to non-search based models A and/or B.

Proposals to simplify the DRD

It has been suggested by some that the DRD is too complex and onerous to complete, particularly for use in straightforward cases where relatively little data is required to be searched and reviewed.

A number of changes are therefore proposed, including:

  • Further guidance on when and how the DRD should be completed;

[1] Professor of Tort Law and Civil Justice at the Department of Law Queen Mary University of London.

  • Confirmation that the DRD may be modified and/or shortened by the parties for more or less complex cases;
  • Clarification that parties are not required to answer all of the questions in Section 2 of the DRD, but only those that are relevant/applicable to their particular case;
  • Guidance on when and how best to use Model C Disclosure requests;
  • Refinement and consolidation of the questions in Section 2 of the DRD to eliminate duplication and to make the form shorter and more user-friendly to complete;
  • Clarification that information on parties’ data sources only needs to be provided in relation to the data sources which the parties propose to search;
  • Updating the questions regarding the use of computer / technology assisted review tools;
  • Finally, the DRD guidance notes are now contained in a separate document from Sections 1A, 1B and 2 that are to be submitted to the Court.

The future

The CPRC has recently been asked to approve a one-year extension of the pilot to the end of 2021. The CPRC will be asked to consider the revisions proposed by the sub-group at its next available opportunity. Unless and until they are approved, they have no formal status.

Professor Mulheron will continue her role of monitoring the pilot and intends in the short term to invite members of the judiciary with experience of the pilot to answer a short questionnaire.

 The Rt. Hon. Lord Justice Flaux
Chair of the Disclosure Working Group

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