Judicial Update on operation of the Disclosure Pilot Scheme

The judiciary has today published an Update on the operation of the Disclosure Pilot Scheme which has been operating in the Business and Property Courts since 1 January 2019 and is set to continue until the end of 2021 following a recent extension.

The update includes publication of the Third Interim Report on the pilot by Professor Rachael Mulheron of QMUL, who has been monitoring the pilot since the outset. The report is dated 25 February 2020 but has only now been released. It analyses the 71 responses received to a questionnaire that practitioners were asked to complete in October/November 2019. The report presents a mix of positive and negative feedback regarding the detailed operation of the pilot, but respondents' views on the overall outcomes under the pilot, as set out in the report, are overwhelmingly negative:

• 85% say the pilot has not saved costs overall (4% say it has, 10% can't say/too early)
• 42% say it has made disclosure less accurate (16% say more accurate, 42% can't say/too early)
• 71% say it has increased burdens on the courts (2% say decreased burdens, 27% can't say/too early)
• 78% say it has not brought about a culture change (6% say it has, 16% can't say/too early)

Professor Mulheron's note accompanying publication of the report, dated 17 September 2020, states that there will be a further opportunity to give feedback on the pilot as it enters its third year of operation in 2021. In the interim, there will be a survey of the judiciary to ascertain their views and experiences of the pilot, which will take place shortly after the new judicial term begins.

The judiciary's update includes a proposed revised version of the pilot rules at Practice Direction (PD) 51U, together with a revised version of the Disclosure Review Document, which are expected to be considered by the Civil Procedure Rules Committee (CPRC) in October. Some of the main proposals are as follows:

• Clarifying that the obligation to disclose “known adverse documents” does not bite until the stage at which the parties provide any Extended Disclosure.
• Providing that document preservation notices only need to be sent to employees or former employees where there are reasonable grounds to believe that the relevant person has disclosable documents that are not already in the possession of the party to the litigation.
• Providing that there is no need to disclose adverse documents at the Initial Disclosure stage, and that the parties can agree to dispense with the requirement for an Initial Disclosure List of Documents.
• Confining the obligation to complete the Disclosure Review Document (DRD) to cases where the parties propose one or more search-based Extended Disclosure models, and providing that some sections of the DRD may not have to be completed in some circumstances.
• Clarifying the scope of “Model C” request-based disclosure, and in particular that this is intended to relate to narrow categories of specific requests – ie not the wide-ranging requests that you might find in a “Redfern Schedule” in international arbitration.
• Simplifying section 2 of the DRD, which provides the court with information about the data held by each party, and allowing parties to tailor it more easily to their cases.

A number of these proposals were mentioned during the Commercial Court 125 virtual seminar on 7 September as outlined here.

The judiciary's update emphasises that, unless and until the proposed amendments are approved by the CPRC, they have no formal status. We will provide a further update once the position is clear regarding the amendments.

In any event, given the relatively limited nature of the proposed amendments, it is not obvious that they will be sufficient to alleviate court users' concerns regarding overall outcomes under the pilot.