Parties must not ‘fall back into bad habits’ after approval of disclosure pilot

Emilie Jones of Pinsent Masons said: “Parties, legal advisers and judges must not fall back into the bad habits which led to the introduction of the pilot in the first place, such as failing to focus on the real issues in dispute and what was required to resolve them, with the result that excessive volumes of documents were disclosed, a great many of which did nothing to assist in the resolution of the dispute.”

The original pilot, which was launched on 1 January 2019, was introduced in response to concerns raised by in-house counsel, the legal profession and other court users that the increasing use of electronic data had made the burden and cost of the disclosure process disproportionate. Intended to introduce "wholesale cultural change", the pilot required parties to cooperate meaningfully with each other in identifying the issues in dispute on which disclosure was required, and making proposals as to the scope of disclosure in relation to these issues.

An updated version of the pilot (27-page / 650KB PDF) was approved earlier this month and will become Practice Direction 57AD (PD57AD) of the Civil Procedure Rules. From October, it will apply to existing and new proceedings in the Business and Property Courts of England and Wales, and the Business and Property Courts in Birmingham, Bristol, Cardiff, Leeds, Liverpool, Manchester and Newcastle. It does not apply in the County Court. The pilot version of the rules continues in the meantime.

PD57AD requires parties to sign ‘disclosure certificates’ after they have searched for and reviewed their own documents. The certificates are formal documents, verified by a statement of truth, that set out the process parties have followed and give various confirmations about the integrity of the disclosure process. Under PD57AD, parties are also expected to use technology assisted review, such as predictive coding, during the document review process.

Jones said: “While not universally popular, these rules have benefited hugely from the way in which the disclosure working group responsible for them has actively sought feedback from the legal profession and others and has repeatedly used this feedback to re-work and refine the rules. The rules which are being made permanent are certainly much clearer, more workable and less onerous in a number of respects than those introduced back in 2019 at the start of the pilot.”

“Participants in litigation must now strive to continue to take a thoughtful, pragmatic and collaborative approach – as is required by the rules - to identifying the documents really necessary to resolve a dispute and the most efficient way of collecting, processing and reviewing them. In most commercial disputes of any size, technology is absolutely key to this, so involving specialist e-data advisers at an early stage to design and implement the best approach is critical,” Jones said.

She added: “One small refinement made in the latest iteration of the rules provides that a party’s disclosure certificate may be signed by its legal representative – rather than by someone at the client business itself. This may be more convenient in some cases, but the legal representative will only ever be signing with the express written consent of their client. As a result, a senior individual at the client – such as a senior in-house lawyer – must still understand and have ultimate oversight of the disclosure process.”