The Disclosure Pilot Scheme: where are we two and half years on?

The Disclosure Pilot Scheme (DPS), introduced on 1 January 2019, pursuant to Practice Direction (PD) 51U of the Civil Procedure Rules, is now some two and a half years old. Revisions were introduced on 6 April 2021.

Background

The DPS’s aim was to make disclosure more proportionate and tailored to each case. Parties are required to agree Issues for Disclosure and disclose documents in two stages:

• Initial Disclosure (simultaneous with service of statements of case); and
• Extended Disclosure (by agreement or order under the scope of various models).

The DPS also introduced an active requirement for parties to cooperate, including in completing the Disclosure Review Document (DRD) which includes the wording of requests, a list of custodians, date ranges and search terms for e-disclosure.

In UTB LLC v Sheffield United Ltd, Sir Geoffrey Vos stated that the scheme was:

“…intended to effect a culture change. The Pilot is not simply a rewrite of CPR Part 31. It operates along different lines driven by reasonableness and proportionality”.

But the real question is where are we now and how has it affected the process of litigation for parties, lawyers and judges?

Feedback

The official monitor of the DPS is Professor Rachael Mulheron of Queen Mary University of London. She has produced three Interim Reports to the Disclosure Working Group in the intervening period:

• A Study of the CE File and Court Processes (First Interim Report, dated 26 March 2019).
• An Empirical Study (Second Interim Report, dated 1 July 2019).
• An Analysis of Questionnaire Feedback from Legal Practitioners (Third Interim Report, dated 25 February 2020).

The Third Interim Report analysed 71 responses to a questionnaire circulated in October 2019 from practitioners with experience of the scheme. Although the responses were relatively limited, they are reflective of wider opinions. Some of the findings were:

• 44% of participants faced issues dealing with the requirement to provide known adverse documents, including: (a) the deadline for disclosure of such documents; (b) defining an “adverse document”; and (c) defining “known”.
• 85% replied that the DPS increased costs, contrary to the principal aim of the DPS.
• 71% stated they believed the DPS increased burden on court time.
• 78% did not identify any cultural change in the disclosure process following the introduction of the DPS. For example, it would appear parties have continued to seek wide search-based models of Extended Disclosure (akin to “Standard Disclosure” under the old rules).

The law

The relevant rules for Initial Disclosure are set out at paragraphs 5.1 to 5.14 of PD 51U.  Initial Disclosure is very limited and ordinarily amounts to disclosure of key documents specifically relied upon by the serving party, in their statement of case.

In terms of Initial Disclosure, two judgments from 2020 give guidance on how this should be approached.

In Breitenbach v Canaccord Genuity Financial Planning Ltd, the court held that at this early stage, only documents necessary to understand the case the other side had to meet and answer should be disclosed.

In Qatar v Banque Havilland, the court similarly found Initial Disclosure needed to be “very tightly focused”, covering the contract or key meeting note. Initial Disclosure will not necessarily need to go beyond “really very necessary documents”, which chime with the aims of the DPS to narrow disclosure generally.

The scope of Extended Disclosure was considered in McParland v Whitehead, with the court concluding that these are very different from the issues for determination at trial. Issues for Extended Disclosure to be defined in the DRD are “issues to which undisclosed documentation in the hands of one or more of the parties is likely to be relevant and important for the fair resolution of the claim”.  In most cases, the issues will not be voluminous, detailed or complicated. At the heart of the exercise is the identification of evidence that will allow the court to dispose of the factual issues in dispute at trial.

The default position appears to be that Model C (request-led, search-based disclosure) Extended Disclosure should be preferred. Where any other model is sought, a case must be made for the same.  Model C will relate to Issues for Disclosure by reference to requests in Section 1B of the DRD for particular documents or a narrow class of documents relating to a particular Issue. Under Model D, parties must undertake a “reasonable and proportionate search in relation to the Issues for Disclosure”.

For both Models C and D, adverse documents must be disclosed (see paragraphs 9.1 and 9.3 of PD 51U for details of the timing).

For Model C, Narrative Documents are not generally disclosed, but adverse documents cannot be excluded from production on the basis that they are Narrative Documents.

Model C does carry a search obligation, but only to the extent of the request. This is more akin to a Redfern Schedule than a Standard Disclosure model or Model D.

In Appendix 1, the definition of “disclose” refers to “a party stating that a document that is, or was, in its control has been identified or forms part of an identified class of documents and either producing a copy or stating why a copy will not be produced”.  “Control” includes “documents (a) which are or were in a party’s physical possession, (b) in respect of which a party has or has had a right to possession; or (c) in respect of which a party has or has had a right to inspect or take copies”.

In terms of how the courts have approached this, in Pipia v BG Group Ltd (formerly known as BGEO Group plc), the court expressed the preliminary view that Model C requests should be defined without reference to any criterion of relevance to the issues in the case, so that a request for documents falling within set parameters and “relating to” a specified issue would not be a competent Model C request at all.

In Energy Works (Hull) Ltd v MW High Tech Projects UK Ltd and another, the claimant made Model C requests, which the defendant complained were extensive enough to essentially amount to Model D.  The requests did capture specific documents (such as minutes of meetings and monthly status reports), but also sought very broad categories including emails, memoranda and correspondence. This was refused by the court as disproportionately wide and too broadly formulated.

In Lonestar Communications Corporation LLC v Kaye and others, the court made it clear that documents requested must be capable of precise description (individually or by class) so the disclosing party understands what must be disclosed, and disclosable documents can be recognised without too much difficulty.

In practice, the line between Model C and D requests may be blurred. The general approach of the court is to use a combination of the wording of the requests, custodians, repositories, search terms and date ranges to contain the Extended Disclosure exercise appropriately. Where an issue is central to the case or the request is inherently narrow, the scope of a Model C request may be indistinguishable from a Model D request.

Where parties seek to limit the scope of Model C Extended Disclosure, reference should be made to paragraphs 6.4 and 6.6 of PD 51U.

Conclusion

Haddon-Cave LJ, speaking at a Gresham College lecture in June 2021, said English law has increasingly become more complex, unclear and inaccessible. He highlighted that just the first two volumes of the White Book run to more than 6,000 pages, following 124 CPR Updates, over 20 years. He stated:

“An increasing proportion of court users are self-represented and are gravely hampered by the complexity of civil procedures which means the equality between wealthy litigants and the under-resourced is still a distant prospect […] The need for non-Byzantine rules which ordinary people can reasonably observe and understand is even greater.”

It seems to me as though his words echo the responses in Professor Mulheron’s Third Interim Report. The world of commercial litigation is becoming highly technical and ever more complicated and costly. I understand the aims of the DPS are well-intended, but during a case management conference which now takes two and a half days, predominantly due to the painful exercise of arguing the minutiae of the detail of the DRD, I cannot help but wonder about its efficacy.

In my view there are some adjustments that could improve the exercise, including the following:

• Technological experts should be engaged and form part of any litigation team, from an early stage.
• The form and content of the DRD could be further improved to create a more streamlined process.
• The need for strict models (especially when the lines between them are blurred) should be reviewed.
• The cost of the electronic disclosure element should be actively considered together with its adoption.

This article was written by Frederico Singarajah in July 2021. First published for Practical Law’s Dispute Resolution Blog.