DISCLOSURE…. is being overhauled and being replaced, to make it more cost effective – Introducing E-
The CPR introduced the concept of “standard disclosure” in 1999. A vital stage in any litigation; identifying and making available all documents that are relevant to the issues in the proceedings. Disclosure applies to documents that exist or may exist and that are or may be relevant to the matters in issue. It includes documents on which a party relies and documents which adversely affect your own case or another party’s case or support another party’s case.
Following a review in 2013, disclosure, as governed by Part 31, was considered to be expensive, overly burdensome and not fit for purpose.
A pilot scheme has now been implemented effective from 1 January 2019 for disclosure in the Business and Property Courts as prescribed by PD 51U.
This two year pilot scheme for existing and new proceedings (with some exceptions) will operate in Birmingham, Bristol, Cardiff, Leeds, Liverpool, Manchester and Newcastle.
The new regime requires the parties to give deep and careful consideration to the use of technology to expedite and reduce the burden and cost of any disclosure exercise. Whilst the scale and scope of the disclosure exercise itself may be reduced, the ability to obtain an order for a party to disclose documents that are adverse to its claim has been preserved and enhanced – the Court now has the power to impose sanctions on those who do not comply fully with the Practice Direction as set out in section 20 of PD 51U.
When a person becomes aware that they may become a party to proceedings, certain duties are imposed upon them under the four stages of disclosure, which are broken down as follows:-
● Document Preservation
● Initial Disclosure
● Extended Disclosure
● Review by the Courts
This means that a Solicitor is required at an early stage, in a case where they are instructed, to identify any person within a company or organisation who may be "aware" of their disclosure responsibilities. The Rules even apply this to any person who may have had “accountability or responsibility but who has since left the company or organisation”.
This duty involves informing all relevant person(s) that all document deletion or destruction must be suspended, to prove what steps/notices they have given to avoid document deletion or destruction and to advise what reasonable steps have been taken to preserve the documents. This duty extends to agents or third parties.
The burden of disclosure starts with the Particulars of Claim, when each party must provide to all other parties with their Statement of Case an Initial Disclosure List of Documents, accompanied by copies of the key documents. There are some exceptions, such as if the initial disclosure would involve circulating the greater of 1,000 pages or 200 documents by itself or another party. This is meant to be a burdensome approach!
Where a party seeks disclosure in addition to, or as an alternative to, Initial Disclosure, they must Extended Disclosure in line with one or more of the Disclosure Models. The parties are then required to try to agree between themselves “issues for disclosure” in a Disclosure Review Document (“DRD”) in which key information relating to disclosure is stored. This document can be found on the following link: It is envisaged that this document is only to be utilised if the Extended Disclosure Models C, D or E are proposed (see below).
At a CMC the Court will review the updated and amalgamated version of the single joint DRD which should be filed by the Claimant not later than 5 days before the CMC. There is a provision to provide a brief costs estimate within this document which is at odds with all requirements within CPR to provide detailed costs estimates. Also, prior to the CMC, the parties must each file a signed Certificate of Compliance confirming that they have complied with their duties to their client and the Court in relation to disclosure (https://www.justice.gov.uk/courts/procedure-rules/civil/pdf/update/appendix-3-practice-direction-51u.pdf)
Before or after the CMC, the parties can apply for a brief and informal Disclosure Guidance Hearing (“DGH”) and provided the parties have made real efforts to resolve the disputes between them through the exchange of the DRD, the Court will provide guidance and make any necessary orders on questions of the scope or performance, utilising the relevant Extended Disclosure models.
The Models of Extended Disclosure available are:_
● Model A – no order for disclosure
● Model B – Limited Disclosure
● Model C – Request-led search-based disclosure
● Model D – Narrow search-based disclosure
● Model E – Wide search-based disclosure
When deciding whether or not it is reasonable or proportionate to order a particular Model of Extended Disclosure, the Court will consider all circumstances of the case and the seven factors set out in paragraph 6.4 of PD 51U.
At this stage the parties will also have been required to file and serve their Costs Budgets and have engaged in BDR, but until such time as the Disclosure Guidance Hearing has taken place and the Model of Disclosure ordered, is it possible to submit or finalise the anticipated costs for the disclosure phase? Fortunately, paragraph 22.2 of PD 51U makes provision for the parties to notify the Court that they have agreed to postpone completion of that section of Form H until after the CMC or DGH. If they have made this agreement, then they must complete the disclosure section within the period ordered and where possible the Court will consider that part of the Costs Budget without an oral hearing.
In order to comply with an Order for Extended Disclosure, the parties must comply with paragraph 12.1 of PD 51U by filing and serving a Disclosure Certificate: https://www.justice.gov.uk/courts/procedure-rules/civil/pdf/update/appendix-4-practice-direction-51u.pdf (which contains a statement of truth), together with service of an Extended Disclosure List of Documents and production of the documents which are disclosed.
PD 51U states quite clearly in paragraph 23.1 that proceedings for contempt of Court may be brought against a person who signs or causes to be signed by another person a false Disclosure Certificate without an honest belief in its truth.
What does all this actually mean? ….less work ….reduced costs….I am afraid I don’t think so! More form filling….strict adherence to time limits…..more detailed consideration when preparing budgets as to which Model of Disclosure will be ordered. More co-operation between the parties already involved in litigation! More detailed instructions to your Costs Draftsman…who will need to know which Model of Extended Disclosure you prefer to adopt, and how many documents are likely to be involved. Consideration will also need to be given to the reasonableness and proportionality of your preferred method in the context of the whole claim. The parties must remember to inform the Court if the disclosure phase is to be completed after CMC, to file the updated version following the CMC, to diarise and if necessary chase the Court for the return of the approved full Budget and to file the front page of the approved Budget within seven days of receipt of the Judge’s decision on the disclosure phase. And the most important question of all,...how long is all this likely to take and to COST!!!
This pilot scheme is meant to save costs!
At Burcher Jennings we pride ourselves in our service level to our clients and our commitment to support our client firms in navigating these difficult waters, thus building on the continued strength and viability of their firms. We provide detailed advice on all areas of concern, including retainer issues and practice and procedure, as a matter of course.
We look forward to continuing to work with our existing clients and meeting new clients to demonstrate how we differentiate ourselves from the rest.
Small enough to be bespoke – large enough to cope!
This article was written by Victoria Morrison-Hughes who is head of Burcher Jennings’ Manchester office and joined the firm in early 2016. A qualified Costs Lawyer with a degree in accountancy and finance, coupled with extensive experience working as a lawyer in high street practice provides Victoria with unique insight into both the operational and technical demands of a legal business. Her main areas of expertise include commercial litigation, clinical negligence, catastrophic injury, Court of Protection and solicitor & own client disputes together with Costs management and negotiations. Victoria’s primary focus is on providing excellent client care and service where her priority rests on quality and ensuring clients receive a bespoke service.