Disclosure Pilot Scheme already making an impact as High Court orders list of “issues for disclosure”
12 December 2018
The mandatory Disclosure Pilot Scheme may not start in the Business and Property Courts of England and Wales (“BPCs”) until 1 January 2019, but it seems the courts are already taking the new rules into account. In one reported case, the High Court has ordered a separate “list of issues for disclosure”, which will have to be jointly completed by the parties as part of the new Disclosure Review Document required under the Pilot Scheme.
Background: the Disclosure Pilot
We have commented previously about the Disclosure Pilot that will run in the BPCs (with limited exceptions) for two years. The scheme will bring about the biggest reforms to disclosure since the introduction of the Civil Procedure Rules almost 20 years ago, both in terms of the process itself and the duties arising for both litigants and lawyers. You can read our brief summary of the changes here and about them in more detail in our guide here.
One of the key changes is that the process of giving disclosure will be split into two stages: “Initial Disclosure” (a light-touch, first step filed with the Particulars of Claim or Defence) and “Extended Disclosure” (which will only be ordered where appropriate to fairly resolve an issue in the case). If the parties decide that Extended Disclosure is necessary, a request must be made to the court using a joint Disclosure Review Document (“DRD”).
Among other things, the DRD sets out a list of “Issues for Disclosure” in the case. Issues for Disclosure are those key issues in dispute, which the parties agree will need to be determined by the court by reference to contemporaneous documents for there to be a fair resolution of the proceedings.
Court orders separate list of “Issues for Disclosure”
After the CMC in an ongoing case related to alleged fraud, the High Court in PJSC Tatneft v Bogolyubov and others  EWHC 3249 (Comm) was dealing with the Claimant’s application for disclosure in relation to additional issues arising from the statements of case. One of the issues before the Court was “whether the issues on which disclosure should be ordered should be set out by way of an amendment to the list of issues or through a separate list.”
The Court indicated that, for now, the Claimant’s approach was in accordance with the broad purposes set out in the Commercial Court guide – i.e. that the list of issues is a reference point both for disclosure and for evidence and it would be sensible to incorporate additional issues into the general list. However, having regard to the upcoming Disclosure Pilot Scheme, the Court agreed with the Defendant that there was merit in having the scope of disclosure set out in a separate document (particularly in a case like this where otherwise the list of issues risked becoming too long to be useful).
The Disclosure Pilot is specifically designed to usher in a change in culture following concerns over the spiralling costs, complexity and scale of undertaking standard disclosure, especially given the prevalence and volume of electronic documents. Litigants and their lawyers do not have long left before the changes come into full effect on 1 January, but this decision makes clear that practitioners need to be ready now as the courts will have the new rules in mind when managing disclosure in cases already in the system.
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