New Year's resolutions for litigators: will the new Disclosure Pilot succeed in reducing legal costs in 2018?

The Disclosure Working Group has announced a new pilot proposal for disclosure in civil proceedings in England and Wales which is open for consultation until February 2018.

Why is this happening?

Disclosure is the mechanism by which parties exchange all documentation that is relevant to a dispute. Currently this is usually dealt with on a standard basis requiring parties to exchange all documents:

1. On which they rely;
2. Which adversely affect their or another party's case (or support another party's case); and
3. That they are required to disclose by a relevant practice direction.

This has been, historically, one of the most expensive parts of a court case and the volume of electronic data in particular that can be disclosed has increased to 'unmanageable proportions' according to the chair of the Disclosure Working Group.

What's new?

The pilot is looking to create a more flexible process to ensure the costs of disclosure are proportionate in each case.

The key changes are:

• There will be a new concept of basic disclosure where key documents are provided with the statement of case (i.e. with the particulars of claim and defence). The intention is that this will ensure parties have all of the key documents at an earlier stage which may encourage early settlement. In addition, it is intended that in straightforward cases this early basic disclosure" may remove the need for any further disclosure (in whole or in part).
• Once statements of case have been provided (and prior to the Case Management Conference) parties will now need to discuss and complete a disclosure review document in order to list the main issues and exchange proposals for disclosure.
• At the case management conference, parties will then discuss this document and specifically whether there should be any further disclosure (beyond the basic disclosure already provided). The court can then order one of five different models to apply to some or all of the issues in question:

Model A: No order for further disclosure (other than the documents given with the statements of case.

Model B: Limited disclosure. This is essentially the basic disclosure provided at the outset together with any known adverse documents. However, the parties are not required to carry out a search for documents.

Model C: Request-led search-based disclosure. This involves an order by the court for a party to disclose particular documents (or classes of documents) relating to a specific issue.

Model D: Narrow search-based disclosure. A party shall disclose documents which either support or undermine its own case or that of another party but only by reference to specific issues that are decided by the Court. Each party must carry out a reasonable and proportionate search and any appropriate limits to the scope of searches will be determined by the court. Essentially this is standard disclosure but as against specific issues.

Model E: Wide search-based disclosure The final model is the broadest possible search and requires a party to disclose documents which either support or undermine its own case or that of another party as well as documents which may lead to a train of inquiry resulting in the identification of other documents for disclosure. This actually goes beyond the current scope of standard disclosure to produce something that is far broader and likely to cost a great deal more than existing disclosure exercises.

When is this coming into force?

The proposed changes are expected to be submitted to the Civil Procedure Rules Committee for review and approval in March/April 2018. Assuming the proposals are adopted without change, it is expected the pilot will piloted across the Business and Property Courts in the Rolls Building as well across Bristol, Cardiff, Birmingham, Manchester, Leeds, Newcastle and Liverpool over a two-year period.

What does this mean for 2018 and beyond?

The pilot attempts to address some of the problems associated with standard disclosure, particularly parties incurring disproportionate legal costs trawling though tens of thousands of documents. However, the more relaxed rules surrounding basic disclosure (and some of the less restrictive models above) may lead to concerns that opponents are withholding important documents (or are intentionally not looking for documents that may harm their case). This increases the likelihood that parties will simply ignore the less restrictive models and ask the court to permit wider search based disclosure which is more onerous and expensive than the existing standard disclosure.

In addition, the increased use of e-disclosure (and searching for documentation using electronic disclosure tools) means that where parties rely on key word searches the new concept of issue based disclosure may not reduce costs at all. Therefore, whether the pilot achieves the laudable aims of reducing legal costs remains to be seen.