Practice Direction 57AD

Articles
01 Dec 2022

On 1 October 2022 the previously known ‘Disclosure Pilot Scheme’ in Practice Direction 51U (“the Pilot Scheme”) took effect permanently (in substantially the same form) as new Practice Direction 57AD (“PD 57AD”). 

As with the Pilot Scheme, PD 57AD applies to existing and new proceedings in the (High Court) Business and Property Courts of England and Wales. It does not apply in the County Court. That means it is likely to be on the radar of most property practitioners, although with the volume of property work in the County Court it won’t apply in every case.

This transition from a pilot scheme to a permanent part of the procedural rules is a good opportunity to review where we are and set out some tips with the benefit of nearly three years’ experience under the Pilot Scheme.

The Pilot Scheme in PD 51U commenced on 1 January 2019 and sets out a new regime for disclosure centred around a Disclosure Review Document (“DRD”).  It was intended to create a more proportionate and cost-effective way of dealing with disclosure, in particular large amounts of electronic disclosure. 

The judiciary consider the Pilot Scheme to have been a success. The Chancellor of the High Court, Sir Julian Flaux, whilst acknowledging that it has resulted in a front-loading of costs, stated that it has caused a “significant change in culture and behaviour in relation to disclosure” and resulted in a dramatic decline in the number of post CMC applications for specific disclosure and a “far more focused and efficient approach to the disclosure process generally”.

So far as practitioners are concerned, the reviews are mixed. Critics point to difficulties with both large and small cases: 

  • In cases with large volumes of disclosure, while it can reduce the number of documents ultimately disclosed it significantly front loads costs particularly if the parties do not find it easy to cooperate, and/or there are multiple parties. Prior to a CMC it is not uncommon to have a draft DRD running to over 25 pages with a significant number of points in dispute on the (i) issues, (ii) models, and (iii) model C requests. 
  • In cases with smaller volumes of disclosure it can be a disproportionate process which results in substantially the same end result as standard disclosure. 

Set against that, a well drafted Disclosure Review Documents gives parties a clear road map for (a) where to search (custodians, data sources), (b) the date range, (c) search criteria to apply, and (d) a list of issues against which to assess relevance. It can prevent clients and practitioners feeling obliged to cast the net too wide for fear of being accused of failing to carry out a proper search or withholding relevant disclosure. 

With the benefit of nearly three years’ experience of the Pilot Scheme, the following ten points may assist with navigating PD 57AD to your best advantage: 

  1. Does it apply? There are exceptions but generally PD 57AD will apply to Part 7 cases in the Property Trusts and Probate List and the Business List (likely to be the most relevant lists for property practitioners). 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. 
  2. Is the claim under £1m or otherwise ‘less complex’? There is a simplified (read: less time consuming and cheaper) procedure for a ‘Less Complex Claim’ in Appendix 5 to the PD. Issues for Disclosure in a Less Complex Claim must be brief, drafted at a high level of abstraction, and rarely exceed five in number. 
  3. Early client involvement is needed on Section 2 DRD – The issues for disclosure in section 1A should in general be drafted by solicitor/counsel but section 2 requires client involvement at an early stage. If the client is a company have an early discussion with their IT department. Understand where they store their data (normally cloud based) and how it is organised. 
  4. Take care in drafting the issues for disclosure – The issues for disclosure are not the legal issues in the case. There is new guidance for formulating these issues in paragraph 7.17 PD 57AD. It is important to engage with what you need (not ‘all documents relating to…’ a legal issue). A useful litmus test is whether it can be understood by a disclosure reviewer (e.g. paralegal) who has not historically been involved in the case. 
  5. Shortcuts? – It is sometimes sufficient to have a small number of broad issues and Model D for all/most of them. Although in those circumstances it would be better to agree the simplified procedure for Less Complex Claims. If the claim is complex you may then be setting your client up for a broader disclosure exercise than would be necessary if the issues were more narrowly defined. 
  6. Limit use of Model C requests – They can easily become a zone of contention and can be hard to formulate when you do not know what documents the other side have in their possession. When seeking disclosure it is often better to draft narrower issues for disclosure and request Model D. Helpfully PD 57AD clarifies that you can suggest Model C disclosure requests in relation to your own searches. 
  7. Electronic search terms – Try and agree electronic search terms as part of s.2 DRD (or if not promptly after the CMC). This gives some protection against a later specific disclosure application if you can show you have searched as agreed with the other side. 
  8. Limit your searches – Once the DRD has been approved remember you only need to search for documents relevant to issues which are ordered as Models C, D and E (Extended Disclosure). If Model B is ordered you are not required to carry out searches, and only disclose the documents on which you rely and known adverse documents. If you carry out searches for a Model B issue and find more adverse documents you will be required to disclose them. 
  9. Work with a disclosure platform provider – Consider (and work with your disclosure platform provider) to distinguish how you are going to harvest, filter and apply search terms for each issue where search-based disclosure is required. Make sure the documents are ‘tagged’ for each issue. 
  10. Limited jurisdiction to grant specific disclosure – Specific disclosure applications must be made on the basis of either paragraph 17 or 18 PD 57AD. This replaces (and is different to) the rules under CPR 31. It is important to relate the application back to the DRD and set out either why a party has failed to comply (paragraph 17) and/or why the order for disclosure should be varied (paragraph 18). 

Article by Emily Betts

Author

Emily Betts

Call: 2009

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