You Show Me Yours: The New Disclosure Pilot Scheme

What’s going on here?

A two-year pilot of new civil disclosure rules gets underway.

What does this mean?

Over the past few years, “disclosure” which refers to the stage of the litigation process when a party (you guessed it) discloses relevant information to the other parties, has become highly topical. Attention is now focussed on civil matters, where the concern has often been on the excessive burden and costs of the disclosure process. January 1 2019 saw the launch of a two-year pilot to hopefully remedy this problematic situation.

What’s the big picture effect?

2016 saw the establishment of a Disclosure Working Group which published a proposed new “practice direction”, changing disclosure rules. The Group’s suggestions are now being trialled for the next two years.

The new disclosure process will be tested in the Business and Property Courts and, if deemed successful, will lead to inevitable changes to Part 31 of the Civil Procedure Rules (where the existing disclosure rules are currently found). Looking to restore credibility (alongside balancing procedural costs and justice), the new "practice direction” sets out a new two-stage process for disclosure: an initial disclosure (covering key documents); and five options of extended disclosure, which the party would have to request from the court. The rules are also seeking to bring disclosure into the 21st century. In large cases (involving over 50,000 documents) the rules state that a party is expected to use “technology-assisted review” and if they don’t, they will have to give a reason as to why they aren’t.

Though not representing a radical departure from the current CPR disclosure options, the emphasis of the new practice direction definitely appears to be on reducing the extent of disclosure and, therefore, the overall costs. The changes have been generally well received from courts, court users and lawyers. However, the Disclosure Working Group admitted that even though the new changes are introduced, there must be a “wholesale cultural change” by users to achieve meaningful reform. It remains to be seen whether the new rules will achieve the Working Group’s ambitious aims. It is, however, a step in the right direction.

Report written by Mark P.

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