Friday, November 15th, 2019
Disclosure: the few that have walked its paper-paved path, will no doubt lament of the arduous process and days of paper work to ensure all relevant documents are organised and compliant with the Court’s direction. With strict rules in place to ensure transparency between parties, it is no surprise Disclosure is often considered the most ‘hands on’ exercise, with costs reflective of the work involved.
How has the new scheme changed Disclosure?
A mandatory (save for limited exceptions) Disclosure Pilot Scheme has been operating in the Business and Property Courts from 1 January 2019. The scheme (the brainchild of a working group chaired by Dame Elizabeth Gloster) is part of the ‘wholesale cultural change’ required to transform the way solicitors’ approach this exercise. The aim is to avoid the current influx of stuffed bundles (more compliant with Sedley’s Laws than the illusive Plato’s Ideal so lusted over by the judiciary) and encourage a more proportionate approach in terms of time and money.
The new process
The new pilot process is set out in two stages:
Stage One: Initial Disclosure
Each party provides their statement of case together with the key documents which they have relied on and the key documents that are necessary to enable other parties to understand their claim/defence. This is in stark contrast to the current practice where parties are required to exchange everything at this initial stage.
Interestingly, parties can agree to dispense with initial disclosure, or are exempt if it would comprise more than 1000 pages or 200 documents. This ensures that very complex large corporate disputes are exempt from the process.
Stage Two: Extended Disclosure
Should a party wish to request further disclosure over and above initial disclosure, they will need to request ‘Extended Disclosure’ from the Court.
Further disclosure “may” be ordered using one of the Disclosure Models for each Issue for Disclosure (with the possibility of the parties having different Models for the same Issue). These are listed below:
- Model A: No further disclosure
- Model B: Limited Disclosure, namely the key documents on which the parties have relied in support of their claims or defences and the key documents necessary to enable the other parties to understand the claim or defence they have to meet;
- Model C: Request-led search-based disclosure, requiring parties to give disclosure of particular documents or narrow classes of documents relating to a particular Issue for Disclosure, by reference to requests set out in the DRD.
- Model D: Search-based disclosure, without Narrative Documents unless otherwise ordered. This requires disclosing of documents which are likely to support or adversely affect their claim following a reasonable and proportionate search surrounding specified issues. This is similar to current standard disclosure
- Model E: Wide search-based disclosure, which will require a party to disclose documents likely to support or adversely affect its claim. Narrative documents must be disclosed unless the court orders otherwise
There is no surety that any party is entitled to Extended Disclosure, it is at the sole direction of the court. It will only be ordered if the court is persuaded that it is “appropriate” to do so in order to fairly resolve an Issue for Disclosure.
Does the new scheme work?
As it stands, this is a ‘one size fits all’ blanket and is often an expensive process which is disproportionate in many smaller/mid-size cases. The new scheme is not without its faults and it somewhat assumes a collaborative approach being adopted by the parties which is not commonplace amongst parties in litigation.
However, the pilot scheme, which will run for two years, allows the parties and the court to adapt the disclosure to be given on a case by case basis and suited to the intricacies of each matter on an individual basis. Naturally, this saves solicitors trawling through years of irrelevant documentation and the client a significant amount of money.
It remains to be seen whether the scheme will be rolled out to other factions of the Court system and if the pilot will be deemed a success. However, one thing can be sure, this scheme signals the beginning of a change in the way we approach the exchange of evidence and a more-client focused litigation process.
If you are involved in litigation, please do be sure to contact one of the Litigation team who will be happy to guide you through the process with tact, enthusiasm and expertise.
Kate Kenneally is a solicitor in Dispute Resolution and Property Litigation team of Hanne & Co LLP