Business & Property Courts of England and Wales handling a range of commercial, property and insolvency litigation cases has embarked on a mandatory Disclosure Pilot Scheme. The scheme replaces the existing rules on document disclosure in High Court cases with the aim to reduce the volume of documents by focusing on the most critical evidence and supporting documentation only.
Why is this necessary?
The antiquated model of standard disclosure has historically been criticised by court users and the profession specifically for the often needless vast volumes of documentation issued and the subsequent time and costs associated with this. Consequentially, in May 2016, the Chancellor of the High Court, Sir Terence Etherton, currently the Master of the Rolls, established the Working Group in response to widespread concerns. The judiciary have been reviewing the process and replaced the ‘one size fits all’ system with a more tailored approach which means required documentation meets the needs for each individual case with a two stage process.
Two stage process
1. Initial Disclosure
“Initial Disclosure” should be given with statements of case of key documents which are relied on by the disclosing party. They are necessary for other parties to understand the case they have to meet. Initial Disclosure is not intended to be a heavy or lengthy process (generally it should comprise no more than 200 documents or 1000 pages) and there are several exceptions where it can be dispensed with entirely.
2. Extended Disclosure
A party seeking additional documents beyond ‘Initial disclosure’ must request ‘extended disclosure’ from the court. Extended disclosures will only be ordered where appropriate and they will be limited by reference to;
a) Issues for Disclosure (only applicable to specific disputed issues in the case with referenced to contemporaneous documents); and
b) A range of five Disclosure Models that escalate in terms of the searches required and the volume of documents to be disclosed.
The Disclosure Pilot Scheme will inevitably limit the vast volumes of documentation through the two stage process but parties must not sit on ‘adverse’ documents which could contradict or impact upon their version of events or support their opponent’s version of events.
Top Tips for organisations managing document disclose under the Disclosure Pilot Scheme
1. Be organised and disciplined as soon as litigation is intimated
2. Keep an up to date record of all document disclosure steps taken
3. Identify a senior member of staff within the organisation to oversee document disclosure
4. Pause all routine document destruction
5. Make paper and electronic copies of all relevant documents
6. Inform the relevant members of the affected team of all documents which need to be preserved
7. Monitor the production of any new documentation that may be damaging or have to be disclosed.
If you require legal advice in relation to commercial or property litigation matters please contact Chris Else on 01283 526200 or email chris.else@elselaw.co.uk.