Disclosure in commercial litigation is an expensive process. To reduce the increasing cost of litigation and to achieve a more efficient and cost effective approach to disclosure, the Courts introduced the Disclosure Pilot Scheme (DPS), which applies to cases in the Business and Property Court proceedings from 1 January 2019, including cases where a disclosure order was made before 1 January 2019. The DPS does not currently apply to the County Courts.

Two Stage Disclose Process

Under Initial Disclosure parties only have to disclose:

• Key documents that they have relied on; and
• Facilitate the exchange of information and those documents necessary to enable the other parties to understand the claim against them.

Initial Disclosure will be given with the statements of case.

If further documents are considered necessary, an order for Extended Disclosure will be made (of which there are five models) by the Court. A Disclosure Review Document (DRD) must be completed by the parties and will list the issues which require disclosure. The DRD is a document in which the parties must identify and agree the extent of any Extended Disclosure and provide this information to the Court to enable it to make appropriate case management decisions. The parties will exchange proposals for which Model should apply for each issue. The DRD should be updated as appropriate, as the case progresses. Parties are required to use reasonable efforts to avoid disclosing documents which have no relevance to the issues and to identify documents which matter to the issues in dispute at the earliest opportunity.

Document Preservation

Clients must be notified by their legal representatives of the need to preserve documents.

Clients must take reasonable steps to:

–        Avoid any document destruction;

–        Ensure that any third parties holding relevant documents to the case do not destroy these.

Disclosure Guidance Hearings

Disclosure Guidance Hearings (DGH) allow the parties’ legal representatives to seek guidance from the Court in advance of the Case Management Conference (CMC). The Court will assist the parties and provide informal guidance on how to bridge any differences arising.

Recent Decision

Edwin Johnson QC, sitting as a deputy High Court judge considered the following:

Prior to the Disclosure Pilot Scheme (DPS) (PD 51U), standard disclosure was ordered (under CPR 31). After the proceedings became subject to the DPS, the claimants applied for “specific disclosure” under CPR 31.12.

The judge noted that:

• The Court did not have jurisdiction under CPR 31.12, because that has been replaced by the DPS.
• It was “not obvious” which part of the DPS would give the Court jurisdiction to make “the equivalent of” a specific disclosure order under CPR 31.12.
• Under the Court’s general case management powers, he could make “at least the equivalent of an order which could previously have been made under CPR 31.12”.
• DPS applies to all relevant proceedings in the Business and Property Courts under CPR 31.

Case: White Winston Select Asset Funds LLC and another v Mahon and another [2019] EWHC 1014 (Ch) (23 January 2019) (Edwin Johnson QC sitting as a deputy High Court judge.