The Disclosure Pilot Scheme (“DPS”) has been in operation in the Business & Property Courts of England and Wales (with some limited exceptions) since 1 January 2019, and, following a recent extension, will now run until 31 December 2021.
The intention of the DPS was to make the disclosure process less complex and cheaper. Unfortunately, the results of a user survey carried out last year (but only recently released) suggest that these goals have not been met, with 85% of respondents saying that the DPS has not saved costs overall and 71% saying that it has increased the burden on the Courts.
The Civil Procedure Rule Committee has recently agreed to make certain changes to the DPS, with a view to alleviating some of the burden and uncertainty with the DPS in its current form.
Changes to come
The changes approved by the Rule Committee do not bring about any large-scale changes to the DPS, but should hopefully address some of the practical issues experienced by users.
A number of different changes have been approved, some of which are intended to clarify the rules (for example, making clear that “known adverse documents” are not required to be produced until after the Initial Disclosure stage when Extended Disclosure is provided). Others are intended to reduce the burden, and therefore the costs, of complying with the DPS (for example, shortening and simplifying the Disclosure Review Document and making it clearer that some sections do not need to be completed at all for cases where the disclosure exercise is likely to be relatively straightforward).
One key change which will hopefully make life easier for in-house counsel is to make clear that document preservation notices only need be sent to current and former employees when there are reasonable grounds to believe they hold disclosable documents that are not already in a party’s possession. This is a welcome narrowing of the current wide obligation on parties to send written document preservation notices to “all relevant employees and former employees”. The change stems from large corporates in particular suggesting that the current requirements create too much of a burden.
Timing and future change
The changes are to come into force with the next update to the Civil Procedure Rules but require Ministerial approval and no date is yet set.
As the DPS enters into its third year in 2021, further feedback is being invited from court users in order to continue to address practitioners’ concerns and improve the pilot. So there are likely to be more amendments in due course, particularly to deal with lower value cases.
[I]t is intended to be a ‘living pilot’, whereby feedback and comments received from those who are involved in the Pilot will be closely taken account of by the Disclosure Working Group, and where necessary, amendments to the content of PD 51U may be made as the Pilot progresses.
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