An important pilot aimed at reducing the cost and volume of disclosure in civil litigation has been extended for a further year, with the prospect of further consultation and revisions before a decision is made as to whether to introduce it into the permanent civil procedure landscape.
What is the DPS?
The Disclosure Pilot Scheme (DPS) commenced for cases in the UK’s Business and Property Courts on 1 January 2019 for an initial period of two years. In June 2020, the civil procedure review committee decided to extend the pilot by a year.
The DPS came about as a result of pressure from the business community and others to reduce the scale, costs and resources involved in disclosing documents in court proceedings, which have dramatically expanded in recent decades (particularly in large commercial cases).
The intention of the DPS was to promote a wholesale change of culture in the approach to the disclosure process in civil litigation and “ensure that disclosure is directed to the issues in the proceedings and that the scope of disclosure is not wider than is reasonable and proportionate […] in order fairly to resolve those issues”.
The DPS (contained in Practice Direction 51U) seeks to achieve this by:
- introducing ‘Initial Disclosure’ of the documents relied on at the time of serving the statements of case;
- encouraging the early exchange of information about issues in dispute and disclosure, discussion between the parties and completion of the Disclosure Review Document (DRD) before a case management conference considering the appropriate order for disclosure in the case; and
- introducing a menu of five ‘models’ of 'Extended Disclosure' involving different criteria for the extent of the search for further documents.
Experience of the DPS
Experiences of disclosure exercises under the DPS are varied.
Some parties report that the DPS ensures consideration of disclosure from an early stage in proceedings and that there have been benefits in terms of time and costs. For example, an order for Model B ‘limited disclosure’, pursuant to which parties are not required to undertake any searches for documents in addition to the search already conducted for the purpose of preparing their case, has obvious benefits. Further, the experience of parties that have used ‘Initial Disclosure’ has been very positive.
However, there have also been significant drawbacks, in particular, with regard to the cost, the timing of certain procedural steps, and the complexity of the new models.
The DPS front loads costs but a number of parties consider the DPS to have increased the overall costs of giving disclosure, which runs contrary to the overall aim of the DPS. That is largely as a result of the significant time being spent on the negotiation and completion of the DRD and preparing for the first CMC and/or disclosure hearings, with little if any corresponding reductions in the cost of the actual document review.
Parties have been warned by the courts to co-operate in completing the DRD and agreeing the approach to disclosure in so far as possible. However, the parties and their legal advisors continue to take tactical points and adversarial positions during this process, which undoubtedly increases costs.
Parties have also suggested that certain orders under the DPS have created additional work, expense and complication – for example, orders for Model C ‘request-led search-based’ disclosure where the requests are not narrowly based or the requests result in overlapping searches of the same document population.
Though orders of this nature may be familiar to those with a background in arbitration, parties are generally unfamiliar with this type of order which has resulted in difficulties in formulating targeted Model C requests that could result in narrower searches.
Future of the DPS
Decisions on disclosure and the operation of the DPS overall are being monitored by Professor Rachael Mulheron of Queen Mary University. Further, the drafting sub-committee for the DPS continue to consider feedback from interested parties.
The extension of the DPS for a further year provides an opportunity to gather more data (including on legal costs of litigants), to improve and clarify the process to be used in the future.
It remains to be seen whether it will be possible to address all of the difficulties experienced in relation to the DPS to date, but regardless, it seems unlikely that there will be a return to disclosure under the previous rules.
In the meantime, litigants will need to continue to explore ways of reducing the high costs of the disclosure process, either through options available under the DPS or by utilising technology and other solutions to manage these costs.