Disclosure Pilot Scheme
What is it?
A pilot disclosure scheme applying to new and existing proceedings in the Business and Property Courts for two years from 1 January 2019. It will continue to apply, after the two year period, to any proceedings already affected. (The DPS does not currently apply to the County Courts.)
What are the key points?
Legal representatives are required to notify their clients of the need to preserve documents.
Clients must also provide written information that they have taken reasonable steps to;
- Suspend their document destruction processes;
- Send a written notification to any relevant employees identifying the documents to be preserved, and
- Ensure that third parties who hold relevant documents on their behalf do not delete or destroy these.
These are factors that need to be considered as soon as litigation is contemplated.
Disclosure Guidance Hearings (DGH)
These allow parties to seek guidance from the Court in advance of the Case Management Conference. It is usually the parties’ legal representatives that will participate in the DGH, and the guidance given by the Court will be formally recorded.
Initial Disclosure and Extended Disclosure
There is now a two stage disclosure process.
Under Initial Disclosure parties only have to disclose;
- Key documents that they have relied on; and
- Those documents necessary to enable the other parties to understand the claim or defence against them.
An order for Extended Disclosure will be made if appropriate, if further documents are considered to be necessary, but there is no presumption that a party is entitled to this. If an order for Extended Disclosure is made a Disclosure Review Document (DRD) must be completed. This is a document in which the parties must identify and agree the extent of any Extended Disclosure and provide this information to the Court. There are five different models of Extended Disclosure and parties will need to identify which one applies to their case. The DRD should be updated as appropriate, as the case progresses.
There is now an express obligation to disclose known adverse documents, meaning documents which materially contradict or damage the disclosing party’s case.
We have experience in guiding clients through the disclosure process, and can work along side disclosure service providers to ensure compliance with the above. For more information on this topic, please contact Olivia Morton, or you can give us a call on 0345 070 6000.
This article was prepared by Sophie Gladwell.