Disclosure Pilot Scheme to take effect as permanent new Practice Direction from 1 October 2022, with no substantial changes

The Disclosure Pilot Scheme, which has been operating in the Business and Property Courts since January 2019, is to be incorporated into the Civil Procedure Rules permanently, with only minimal changes. From 1 October 2022, it will take the form of a new Practice Direction (PD) 57AD "Disclosure in the Business and Property Courts", which is substantially in the form of (and replaces) the current PD 51U. The Chancellor of the High Court and Master of the Rolls have welcomed the move, as announced here.

The adoption of the Disclosure Pilot on a permanent basis follows a process earlier this year in which the Disclosure Working Group sought views on the scheme's operation to date, including whether it has achieved the key aim of reducing the time and costs involved in the disclosure process. The results of that process have not been published but, anecdotally, there is a great deal of scepticism among practitioners as to whether the Disclosure Pilot has led to any costs savings, particularly in complex disputes, given the high costs of negotiating the list of issues for disclosure and agreeing appropriate disclosure models for each, not to mention reviewing documents to assess whether they correspond to the particular issues in question.

The Chancellor has recognised that the Disclosure Pilot has resulted in a front-loading of costs, but stated that it has also led to a dramatic decline in specific disclosure applications and a "far more focused and efficient approach to the disclosure process generally". The Master of the Rolls has described the new PD as reducing the need for disclosure where it is unnecessary, and increasing the parties' focus on the real issues in the case.

The minor changes that will be included in the new PD57AD can be viewed in a redline comparison to the current PD51U here. They include:

• Part 8 Claims: Confirmation that PD57AD does not apply to Part 8 claims unless specifically ordered (in which case the court can adapt the procedure as appropriate to the proceedings)
• Known Adverse Documents:
  • Confirmation that Known Adverse Documents must be disclosed even if the issue to which they are relevant is not one of the issues in the List of Issues for Disclosure
  • Clarification of the timing for disclosure of Known Adverse Documents, by removing wording that arguably suggested this is required as soon as proceedings are commenced
• Model C requests (ie for particular documents or narrow categories of documents): Confirmation that a party may not only address Model C requests to other parties but also propose the use of Model C for its own disclosure
• Certificate of Compliance: Confirmation that this is not required in cases where a Disclosure Review Document does not need to be prepared
• Disclosure Certificate:
  • Amendment to the wording regarding the duty to contact any relevant former employees for the purpose of identifying Known Adverse Documents, which now accurately reflects the scope of the duty (in PD57AD) - ie to "take reasonable steps to check the position" with such employees, rather than to receive positive confirmation from all of them
  • Confirmation that a party's legal representative may sign the Disclosure Certificate provided that they have explained to the party its significance and have written authority to sign on the party's behalf
• Less Complex Claims: The default threshold below which a simplified procedure will apply (subject to party agreement or court order) has been increased from £500,000 to £1 million claim value