As of 1st January 2019, a two-year pilot scheme commenced regarding new disclosure rules in response to criticism of the old process.
The new Practice Direction (“PD”) 51U will apply to proceedings that are ongoing on 1 January 2019 and, where there is any conflict between the old and new disclosure rules, the new ones will supersede.
These reforms have the objective of re-writing and modernising the current CPR Part 31 rules on disclosure, as they have been described as ineffective and not fit for purpose.
In a survey conducted by the London Solicitors Litigation Association with the New Law Journal in 2017, it was found that a modernisation of the current disclosure rules was needed, bringing them more in line with the digital era and becoming more time and cost effective.
Whilst the principles of disclosure in the new PD are similar to that of CPR 31, for example parties are still required to disclose documents that are adverse to their own case or support the opposing parties’ case, the scope has been widened in the new PD.
Two new stages of disclosure have been introduced, namely, initial disclosure and extended disclosure.
The initial disclosure stage proposes that when statements of case have been served, the key documents to be included are those on which a party has relied in support of the case or defences advanced, as well as those documents that are necessary to enable the other parties to understand the claim/defence they have to meet.
This stage is applicable where a party states it will likely wish for the disclosure of documents, other than those disclosed in the initial stage. A request for ‘extended disclosure’ must be made within 28 days of the final statement of case. Whilst no application is required for this, the Disclosure Review Document must be completed.
Menu of Disclosure Models
The old menu of disclosure options will be replaced by a new range of Disclosure Models. These include:
- Model A: Disclosure confined to known adverse documents.
- Model B: Limited Disclosure (documents on which you rely plus any known adverse documents of which you are aware but without the need for a further search).
- Model C: Request-led, search-based disclosure for particular documents or narrow classes of documents relating to a particular issue for disclosure.
- Model D: Search based disclosure for documents which are likely to support or adversely affect either party’s case on one or more of the issues for disclosure. Similar to standard disclosure, but with some options around disclosure of “narrative” documents.
- Model E: Wider search-based disclosure.
Duty to Disclose Known Adverse Documents
An adverse document is one which “contradicts or materially damages the disclosing party’s contention or version of events on an issue in dispute”. The new disclosure rules contain an express duty to disclose such adverse documents, even if a party has not been asked but knows the document to be adverse.
This duty has been included to encourage parties to push for narrower disclosure and to prevent parties from pursuing positions contradicted by documents.
It remains to be seen whether these new disclosure rules will have the effect it intends. The new PD can be read in full here.