From 51U to 57AD – The Disclosure Pilot Scheme Becomes Permanent

From 1 October 2022, the Disclosure Pilot Scheme (“Pilot Scheme”) will become a permanent part of the Civil Procedure Rules (“CPR”) in the form of Practice Direction 57AD – Disclosure in the Business and Property Courts (“PD 57AD”). PD 57AD will apply to all existing and new proceedings in the Business and Property Courts. Claims in the County Court, alongside a number of specific excepted types of claims (most of which were not covered by the Pilot Scheme), are not covered by PD 57AD; disclosure in such cases will continue to governed by the rules in Part 31 of the CPR.

The Pilot Scheme

The Pilot Scheme was first introduced on 1 January 2019 with the overarching aim of transforming the approach to disclosure in civil litigation. To achieve this, the Pilot Scheme introduced three new concepts: Initial Disclosure; a Disclosure Review Document; and Extended Disclosure. Under the Pilot Scheme, litigants must now serve an Initial Disclosure List with their statement of case and give Extended Disclosure using the appropriate Disclosure Model(s), of which there are five. In preparation of the Case Management Conference, litigants much engage with the Disclosure Review Document and seek to agree the issues for Extended Disclosure, whether search-based disclosure is appropriate, and the appropriate Disclosure Models to be employed. In order to comply with an order for Extended Disclosure, a litigant must serve a Disclosure Certificate and an Extended Disclosure List of Documents, and produce the documents referred to on that list.

PD 57AD – what has changed?

As part of the Civil Procedure Rule Committee’s announcement approving the Pilot Scheme, a number of amendments were also approved. The main changes are as follows:

• Part 8 Claims will, unless otherwise ordered, be exempt from PD 57AD.

• Clarification that Adverse Documents include documents containing information contradictory or materially damaging to a litigant’s contention, version of events, or an issue in dispute, whether or not that issue is one of the agreed issues for disclosure.

• Clarification that a litigant can suggest the use of Model C in respect of its own search and disclosure of documents, as well as for the other party’s disclosure.

• A party’s legal representative can now sign the Disclosure Certificate, provided that they have explained the significance of the Disclosure Certificate to their client and have obtained written authority to sign on their client’s behalf.
• A claim with a value of less than £1 million should be treated as a Less Complex Claim unless the nature and complexity of the dispute, and likely volume of Extended Disclosure warrant the full benefit of the PD 57AD procedure. The value threshold was previously £500,000.