From 1 January 2019, many commercial proceedings in the Business & Property Courts of England and Wales will be subject to a new disclosure pilot scheme which will operate for two years, in eight Cities. It offers a menu of disclosure options (“Models”) with the aim to achieve a more cost and time efficient approach to the disclosure process whilst making it more bespoke to the case. This blog provides a background to this scheme and an information sheet on the models is also provided at the end.

Before Initial Disclosure, the parties should discuss with close co-operation and complete a “Disclosure Review Document “(DRD”). This will list issues in dispute which require disclosure and enable parties to exchange proposals for “Extended Disclosure”, including which Model should apply for each issue. Essentially, it sets the agenda for discussions. At the Case Management Conference (“CMC”), the Court will determine which Model (A-E) is to apply to each issue requiring Extended Disclosure by reference to principles of reasonableness and proportionality.

A finalised, single DRD has to be filed at court before the first CMC (no later than five days before), and each party will be required to sign a Certificate of Compliance confirming that:

  • The firm has discussed, explained and advised the client regarding the possible disclosure orders, whether any order for Extended Disclosure should be sought, what the Issues for Disclosure should be, and which disclosure models are appropriate to achieve a fair determination of the issues for disclosure.
  • The client understands the duties owed to the court, the overriding duty to ensure that the burden and costs of disclosure are reasonable and proportionate in the context of the proceedings, and the likely costs that will be incurred in respect of the disclosure it is seeking
  • The information in the DRD is true and accurate.

The new pilot places increased emphasis on “Disclosure Duties” which will apply to a person who knows that it is or may become a party to the proceeding. They involve:-

  1. Taking reasonable steps to preserve documents in its control;
  2. This includes documents that are (or were) in your physical possession,  documents in respect of which you have (or had) a right to possession or documents in respect of which you have a right to inspect or take copies (for example, documents held by your third-party professional agent, such as other firms of solicitors or accountants).
  3. To disclose “known adverse documents”, regardless of whether an order is made for it;
    1. This means documents that either contradict or materially damage your contention or version of events on an issue in dispute or support the contention or version of events of an opposing party on an issue in dispute.
    2. To undertake any search for documents, that is ordered by the court, in a responsible and conscientious manner to fulfil the stated purpose of the search
  4. To act honestly throughout the disclosure process;
    1. To avoid “document dumping”, that is, to provide irrelevant documents.
    2. To use reasonable efforts to avoid providing documents to another party that have no relevance to the issues in the proceedings on which disclosure of documents is required.

As your legal representative, we are under an express duty to inform you of the duties that you are required to comply with, and to ensure that you understand them. These are continuing duties that will last until the conclusion of the proceedings (including any appeal) or until it is clear that there will be no proceedings.

Further duties are also imposed on the legal representatives involved and failure to comply with these duties and any orders entitles the Court to apply sanctions including, but not limited to, adjournment of hearings and adversarial orders for costs.

Overall, the scheme does have its complexities, requiring disclosure to be made much earlier in proceedings. Whether this scheme will be adopted more widely and on a more permanent basis after the two years will be interesting to see, but for now understanding each model is key. Here at Strain Keville, we have been busy putting together an information sheet for our clients!