A disclosure pilot scheme has been underway in the Business and Property Courts since the beginning of 2019, governed by CPR Practice Direction (PD) 51U. The scheme was originally intended to run for two years but, at the June meeting of the Civil Procedure Rule Committee (CPRC), it was agreed that it should be extended for a further year, with continuing monitoring to be overseen by the Disclosure Pilot Working Group.
The minutes of the June meeting note that the pilot was “intended to effect a culture change”, and this has not yet had time to bed in, but “indications are that, although slow, the approach is beginning to change”. The minutes also record the Chair’s comment that “the mere fact that the Pilot is being extended cannot endorse the success or otherwise of the scheme”.
There was also some discussion of the pilot at an open meeting of the CPRC in May, at which the meeting’s Chair said he thought it unlikely that the pilot would be rolled out to civil litigation beyond the Business and Property Courts. That was, he said, because disclosure under the pilot can be quite a major exercise, can be quite expensive, and can frontload costs, and so may not be suitable for “ordinary run of the mill litigation”.
No doubt there will be opportunities to give feedback on the operation of the pilot during the period of extension, so as to help shape the disclosure regime that will apply to the Business and Property Courts when the pilot comes to an end. The CPRC June minutes make it clear that a report on the operation of the pilot is to be prepared for the CPRC in time to review the pilot before its extended deadline and in any event, before the June 2021 CPRC meeting.
Our own experience is that the pilot can significantly increase costs, particularly in complex cases where there are multiple parties, because of the added complexities and the steps that need to be taken to comply with pilot procedures. So while there are positive aspects to the pilot, such as its added focus on identifying the issues where there really needs to be disclosure, we’re not convinced the pilot is the answer to controlling the costs of disclosure.
For more information on the pilot see this article by Julian Copeman and Maura McIntosh (first published in the January/February 2018 edition of PLC Magazine) or you can access this webinar, presented by Julian and Rachel Lidgate on 4 November 2019.