New disclosure pilot winging its way to the Business and Property Courts

A working group chaired by Lady Justice Gloster has released new disclosure rules which seek to simplify the current disclosure rules. The proposed rules are the subject of a consultation which runs until 28 February 2018, after which it is intended for there to be a mandatory pilot scheme in the Business and Property Courts (the new umbrella term for specialist business courts across England and Wales).

The proposed scheme provides a starting point of “basic disclosure” which requires parties to disclose the key documents on which they rely and the key documents necessary to enable the other parties to understand the case they have to meet. This basic disclosure is to happen at the outset when parties serve their statements of case (the documents setting out the legal basis of their claim or defence).  However a party does not have to carry out basic disclosure if it agrees this with its opponent, or the court so orders, or if it concludes that it would involve it or any other party providing more than 500 pages.

There are also “extended disclosure” Models A – E, which range from Model A being no disclosure, to Model E which is the old-fashioned Peruvian Guano disclosure, which extends to ‘train of enquiry’ documents. Model E “should be exceptional” according to the draft rules.

If the parties wish to opt for Models B - E then they must indicate their intention to do so when serving their statements of case, and liaise regarding a list of issues for disclosure and which disclosure model would be appropriate for each issue. If any of the disclosure models involve a search for documents, the parties will be required to exchange information about what documents they have and where they are stored, and their proposals for the search to be carried out. The issue will then be addressed at the case management conference before a judge.

The working group’s proposals are expected to have a significant impact on the disclosure process therefore we shall be keeping a close eye on the progression of the consultation and the pilot.