The Disclosure pilot scheme was launched with the intent of improving eDisclosure. In late 2022, the procedure was updated and is now formally known as Practice Direction 57AD.
In 2018, the Civil Procedure Rule Committee approved a new Practice Direction and in January 2019, the PD57AD took effect. This sets down rules for a mandatory disclosure pilot scheme which has assisted in remediating concerns that the cost of disclosure was disproportionately high.
The Business and Property Courts in England and Wales ran the scheme for two years before they updated it in late 2022. It is now formally known as the Practice Direction PD57AD. The intent of this scheme is to drastically reduce the time and costs associated with the standard disclosure process by offering multiple disclosure options. The success of the new disclosure pilot scheme will also determine whether wider reforms will take place beyond the Business and Property Courts and outreach to the County Courts (read the full PD57AD here).
Origination of the Disclosure Pilot Scheme
In May 2016, the Disclosure Working Group, which initiated the process, concluded that the previous disclosure rules in CPR 31 were outdated. These rules were originally designed for paper disclosure and no longer adequately address the vast amounts of data within electronic disclosure.
With expert guidance and scrutiny from judges, lawyers and representatives of professional associations, an entirely new disclosure framework was devised. With the new Rule and Practice Direction being approved by the Civil Procedure Rule Committee on 13 July 2018.
Where Does this New Procedure Apply?
We have discarded standard disclosure and it will no longer be the default option. In its place, we have introduced a menu of specific options (also referred to as ‘models’) to be ordered by reference to the particular issues in a case. Prior to the Case Management Conference (CMC), the opposing parties will now need to complete a joint Disclosure Review Document (DRD). This will replace the current Electronic Disclosure Questionnaire. It will list the key issues in the case which require disclosure and allow parties to exchange proposals for “Extended Disclosure”. Thus including which Disclosure Models apply to each specific issue.
The DRD process also allows opposing parties to share practical information. This includes considerations such as how to store documents, how to undertake searches, and how to execute the document review process.
Parties and their lawyers will be under an express duty to cooperate and engage before the CMC in order to promote reliable, timely and cost-effective disclosure. At the CMC, the Court will proactively determine which of the five disclosure models (Models A to E) is appropriate to each issue requiring Extended Disclosure.
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The Extended Disclosure Models
Extended Disclosure may take the form of one or more of the Disclosure Models set out below. There is no presumption that a party is entitled to Extended Disclosure, and in particular, Model E disclosure will only be ordered “in an exceptional case” with justification from the parties in a specific section of the DRD.
The court may order that Extended Disclosure be given using different Disclosure Models for different Issues for Disclosure in the case. In the interests of avoiding undue complexity, the court will rarely require different Models for the same set of documents. The court may also order that Extended Disclosure be given by only one party. Or that different Models are to apply to each party’s Disclosure on a particular Issue for Disclosure.
Model A: Disclosure Confined to Known Adverse Documents
The court may order that the only disclosure required in relation to some or all the Issues for Disclosure is of known adverse documents.
Model B: Limited Disclosure
The court may order the parties to disclose (where and to the extent that they have not already done so by way of Initial Disclosure, and without limit as to quantity):
- The key documents on which they have relied (expressly or otherwise) in support of the claims or defences advanced in their statement(s) of case; and
- The key documents that are necessary to enable the other parties to understand the claim or defence they have to meet;
- A party giving Model B Disclosure is under no obligation to undertake a search for documents beyond any search already conducted for the purposes of obtaining advice on its claim or defence or preparing its statement(s) of case.
Model C: Request-Led Search-Based Disclosure
The court may order a party to give disclosure of particular documents or narrow classes of documents relating to a particular Issue for Disclosure. This is done by reference to requests set out in or to be set out in Section 1B of the Disclosure Review Document or otherwise defined by the court.
If the parties cannot agree on disclosure pursuant to a request, then the requesting party must raise the request at the case management conference. The court will determine whether the request is reasonable and proportionate and may either order the disclosing party to search for the documents requested. For them to refuse the request, or for them to order the disclosing party to search for a narrower class of documents than that requested. Any appropriate limits to the scope of the searches to be undertaken will be determined by the court using the information provided in the Disclosure Review Document.
Model D: Narrow Search-Based Disclosure, with or without Narrative Documents
- Under Model D, a party shall disclose documents which are likely to support or adversely affect its claim or defence or that of another party in relation to one or more of the Issues for Disclosure.
- Each party is required to undertake a reasonable and proportionate search in relation to the Issues for Disclosure for which Model D disclosure has been ordered.
- Any appropriate limits to the scope of the searches to be undertaken will be determined by the court using the information provided in the Disclosure Review Document.
- The order should specify whether a party giving Model D disclosure is to search for and disclose Narrative Documents. If the order does not so specify, Narrative Documents should not be disclosed.
Model E: Wide Search-Based Disclosure
A party shall disclose documents which are likely to support or adversely affect its claim or defence in relation to one or more of the Issues for Disclosure. Or which may lead to a train of inquiry which may then result in the identification of other documents for disclosure.
NOTE: Model E is only to be ordered in Exceptional Cases
Each party is required to undertake a reasonable and proportionate search in relation to the Issues for Disclosure for which Model E Disclosure has been ordered. The scope of the search will be determined by the court using the information provided in the Disclosure Review Document and is likely to be broader than that ordered for Model D Disclosure.
Narrative Documents must also be searched for and disclosed unless the court otherwise orders.
Disclosure Pilot Scheme Criticism
There is no doubt that increased use of technology (such as the Relativity online review platform) will be required to effectively manage the revised disclosure model requirements. However, there is some associated concern that the increased complexity across the new disclosure standards will increase costs, particularly in larger cases.
“We have expressed some concern that perceived issues relating to disclosure may exist only in high value commercial litigation. With that in mind we have suggested that the working group may wish to consider whether there are existing powers the court could exercise in relation to disclosure. We have proposed that the working group limit the pilot to complex cases of over £500,000. We have also suggested the pilot is not appropriate for certain types of case, such as Contentious Probate or Trusts of Land and Appointment of Trustees Act (ToLATA) claims. We have expressed a view that the courts are already overburdened. The proposals will require additional court time and judicial resource. This may be of some concern as it is likely to lead to delays.”
Technology Elements within the PD57AD
Practice Direction 57AD places further emphasis on how to consider the use of technology will help to promote a cost-effective, proportionate approach to the disclosure process. The following extracts are taken from the body of the new Practice Direction. They highlight specific electronic disclosure elements that CYFOR Legal are expertly placed to assist with.
Cost-Effective Electronic Disclosure
“Liaise and cooperate with the legal representatives of the other parties to the proceedings (or the other parties if they do not have legal representatives) so as to promote the reliable, efficient and cost-effective conduct of disclosure, including through use of technology”.
Section 9.6: Electronic Disclosure Searches
Where the Disclosure Model requires searches to be undertaken, the parties must discuss and seek to agree, and the court may give directions, on the following matters with a view to reducing the burden and cost of the disclosure exercise –
Section 9.7: Extended Disclosure
In making an order for Extended Disclosure, the court may include any provision that is appropriate including provision for all or any of the following –
Parties need to be able to explain the benefits of what they propose in terms of technology. This ensures that judges have the necessary information required to assess what is the appropriate disclosure order.
Section 13: Production of Documents
Save where otherwise agreed or ordered, a party shall produce -
- Disclosable electronic documents to the other parties by providing electronic copies in the documents’ native format, in a manner which preserves metadata; and
- Disclosable hard copy documents by providing scanned versions or photocopied hard copies.
- Electronic documents should generally be provided in the form which allows the party receiving the documents the same ability to access, search, review and display the documents (including metadata) as the party providing them.
A party should provide any available searchable OCR versions of electronic documents with the original unless they have been redacted. If OCR versions are provided, they are provided on an “as is” basis, with no assurance to the other party that the OCR versions are complete or accurate.
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