The 137th Practice Direction Update came into force on 12th November 2021 bringing about further reform to the Disclosure Pilot Scheme (DPS) under Practice Direction 51U.
The DPS has operated in the Business and Property Courts since 1st January 2019 with the aim of making disclosure more proportionate and tailored to individual cases. The DPS introduced a range of ‘Models’ for legal practitioners to choose from when deciding on the breadth of disclosure required in different cases.
Under the guidance of the Disclosure Working Group, there has been increasing emphasis on the cooperation between parties to proceedings. Parties are now required to disclose documents at an ‘Initial’ stage before selecting an appropriate ‘Model’ form of Extended disclosure.
Changes introduced to Practice Direction 51U from the 12th November 2021 have continued the Disclosure Working Group’s reforming agenda and implement proposals laid out in July 2021.
Changes from 1st November 2021:
- Extension of the DPS until at least the 31st December 2022. This intention is that this will allow the reforms to ‘bed in’ and make a tangible difference to working practices.
- A simplified disclosure regime for “Less Complex Claims” outlined in Appendix 5 to Practice Direction 51U. This classification depends on the ‘nature, value, complexity and likely volume of Extended Disclosure’ of the claim which may not require the full procedure. It should limit the number of issues and simplifies the Disclosure Review Document.
- Introduction of a ‘bespoke approach’ to disclosure for multi-party claims. This will empower courts to order a bespoke timetable and procedure to address the needs of different parties.
- A simpler and less contentious process for agreeing Lists of Issues. For each Issue for Disclosure the claimant must identify which Model of Extended Disclosure it proposes when drafting the Disclosure Review Document.
- Amendments to enable a Defendant to prepare the List of Issues for Disclosure and identify the models for disclosure if the claimant fails to prepare and serve a list within 42 days of the close of statements of case.
- Redrafted Paragraph 11.1 of Practice Direction 51U allows a single party to approach the court guidance instead of making a joint application. This change aims to increase efficiency and avoid hearings whilst retaining the ‘traditional’ approach for parties to bring an issue for the court to determine.
Nick Armitage, Litigation Partner comments:
"The recent changes to the DPS appear to signal a positive and proactive approach to refining disclosure obligations by the Disclosure Working Group."
"Nevertheless, whilst the DPS has been responsive to feedback, there has been dissatisfaction with certain elements."
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