Few procedural changes have kept lawyers as interested as the continuing fine-tuning of the Disclosure Pilot Scheme under PD 51U, which will become a permanent fixture of the CPR as the brand new PD 57AD from 1 October 2022.
So, where are we now? In essence, we have come to the end of the iterative process where the Disclosure Working Group was seeking continuous feedback from users on the disclosure rules. Here, we take a look at the final changes which will be coming into force next month.
The final changes in force from 1 October 2022
Defining the role of the List of Issues for Disclosure
The rules now contain a new paragraph describing the primary functions of the issues for disclosure (found within the List of Issues for Disclosure (LOID)), one of the main building blocks in the disclosure process which draws together the disclosure parameters between the parties. The main functions of the issues for disclosure, as now set out, are:
- To help the parties to consider, and the court to determine, whether extended disclosure is required and, if so, which model(s) should be used;
- To assist the parties in identifying documents and categories of documents that are likely to exist and require to be disclosed;
- To assist those carrying out the disclosure process to do so in a practical and proportionate way including, in the case of search-based disclosure, to help define and guide the searches;
- To assist with the process of reviewing documents produced by searches; and
- To avoid the production of documents that are not relevant to the issues in the proceedings.
While newly added, these points really just crystallise how the LOID has been (or should have been) used in the disclosure process so far. However, these clarificatory changes may well assist parties hashing out issues for disclosure as they will have clear objectives to point to when making their arguments and agreeing the DRD.
Adverse documents
The treatment of adverse documents, which a party needs to disclose regardless of any disclosure order, has received several editorial tweaks over the last few years, and there are three in this final iteration of the rules.
First, there has been some re-wording to clarify that the duty to disclose known adverse documents exists regardless of any disclosure order. Second, and in a similar vein, there is a clarification that the definition of “adverse documents” does not depend on whether the issue it relates to is an agreed issue for disclosure (paragraph 2.7). This emphasises that there is no easy way around the very broad definition of adverse documents – it cannot be argued that a document, even though adverse in principle, need not be disclosed because it did not relate to an issue of disclosure, closing off any avenue to withhold a document from production.
Third, this does not bite as soon as proceedings have been commenced but is now “no later than” an order for Model B, C, D or E disclosure, or within 60 days of the CMC (paragraph 3.1(2)).
The likely reason for these further clarifications is that the timing for disclosure of known adverse documents had in the early phase of the Pilot caused some debate, possibly because it was a “new” category of documents introduced with the Pilot.
Practical, not radical: signing the Disclosure Certificate
A new paragraph 12.6 now makes it possible for the disclosure certificate to be signed by the legal representative, provided that an explanation as to its significance has been given to the client, and there is written authority to sign the certificate. This change is likely to have the most practical impact on practitioners. Legal advisers may or may not make it their practice to sign the Disclosure Certificate on behalf of their client (remote and hybrid working may play a role in that decision), but it is the party giving disclosure, rather than the legal representative, who will be deemed to be bound by the certification – so there is no radical change to transfer responsibility to the legal representative.
Proposing Model C – for yourself
It has been clarified that a party may not only propose Model C requests to the other side, but can also propose that Model C be used in respect of its own disclosure search. In our view, this amounts just to a minor clarification as this was possible under the previous version of the rules, but it may facilitate negotiations between the parties as to who should adopt which Model.
Modifying and dispensing with the DRD
Parties now have the flexibility to modify the DRD in all, not just complex cases, in keeping with the spirit of the rules, which have always aimed to provide tailor-made solutions for disclosure (see paragraph 10.2). Where the DRD has been dispensed with, it has now been clarified that no certificate of compliance is needed (paragraph 10.8).
Part 8 or no Part 8?
Some tweaks have been made in relation to Part 8 claims. While generally Part 8 claims are excluded from the rules, a new paragraph 1.12 provides that a party seeking disclosure in such a claim should serve and file a LOID and identify the Model(s) sought. The court may then adapt the rules for Part 8. This may at first sight seem contradictory, however the intention seems to be to preserve maximum flexibility for disclosure in Part 8 claims.
Less Complex Claims route now for claims under £1 million
Finally, there is a tweak to the less complex claims route, a relatively late addition in the course of the Pilot. This route allows for a simplified disclosure process, with an indicative (not binding) guide value of claims below £1,000,000, also with a view as to whether the claim by its nature, complexity or likely volume of extended disclosure would be suited to this simpler route. This new guidance value is up from the previous value of claims below £500,000, indicating a desire for more claims to follow the less complex route if possible. Again, this ties in with the general tenor of the rules to try and improve efficiencies around the disclosure process.
The way forward
The introduction of the Disclosure Pilot was the biggest change in this area of the law in years, with a relatively novel approach of encouraging continuing feedback by court users during the extended “pilot phase” (which feedback was enthusiastically and consistently given).
It is clear that one of the main effects of the rules has been to increase disclosure discussions between the parties at an early stage (something the Pilot’s pioneers have repeatedly been keen to stress), so that much of the work in agreeing disclosure is “frontloaded”. These final additions / clarifications to the rules should be seen as a finishing flourish that remains true to the cultural change that the pilot intended to effect, rather than any more substantive change. This also means that the relatively large body of case law on PD 51U, which interprets the rules, will remain relevant to the new rules under PD 57AD. We also anticipate that Disclosure Guidance Hearings will play an even greater role than they have previously in resolving early disagreements, given the Pilot’s emphasis on discouraging large-scale “satellite” disputes regarding disclosure.
