Hardly surprising news, but the Disclosure Pilot Scheme in respect of UK cases in the Business and Property Courts has been extended for a further year. This interesting article by Jonathan Barnett, Sharon Grennan and Benjamin Hewson from Freshfields looking at some of the experiences to dates of the scheme as well as what the future may look like.
I think it is fair to say that the disclosure scheme has certainly both raised awareness of disclosure as well as changing the way that many cases are managed in respect of disclosure. Disclosure seems to be being considered, and considered in detail, much earlier in cases and the use of advanced technological techniques, such as TAR and CAL have certainly been embraced much more.
But whether the Pilot has been 100% successful is yet to be seen. There still seems to be reluctance to deviate away from what people have traditionally done and are used to, for example, 80 percent of Commercial Court disputes opted for Model C in the fist six months of the Pilot and this is something we are regularly seeing. In cases where people deviate from this, and especially where the case has many different aspects, there is a degree of front-loading of costs, which although has definitely reduced the total volume of documents to be reviewed and therefore the total costs, does impact client's thinking and planning.
I believe that the Pilot is definitely a step in the right direction and having more awareness, earlier consideration and reduced costs can only be a good thing, there are some challenges that need to be addressed, and extending the scheme was definitely the right decision.
Further, the drafting sub-committee for the DPS continue to consider feedback from interested parties. The extension of the DPS for a further year provides an opportunity to gather more data (including on legal costs of litigants), to improve and clarify the process to be used in the future. It remains to be seen whether it will be possible to address all of the difficulties experienced in relation to the DPS to date, but regardless, it seems unlikely that there will be a return to disclosure under the previous rules. In the meantime, litigants will need to continue to explore ways of reducing the high costs of the disclosure process, either through options available under the DPS or by utilising technology and other solutions to manage these costs.