Another useful read from Ben Coleman at Bristows about the Disclosure Pilot Scheme – this piece specifically focuses on the new changes that came in on November 1st.
Ben covers the key changes, which I have listed below here:
- The introduction of a lighter touch process for "Less Complex Claims";
- Reducing the scope of the court's involvement in assisting the parties to agree and meet their disclosure obligations;
- Streamlining certain aspects of the staged regime;
- The addition of guidance around the use of Model C disclosure;
- The inclusion of express recognition that disclosure in multi-party cases may warrant a bespoke approach.
I won’t comment on all the points, but I will mention a little more about the models – as this really has been a sticking point for the DPS.
One of the key issues with the DPS so far has been reaching some form of agreement on which model use. We wanted more guidance (carrot) and (stick) from the Courts to emphasise suitable situations for the use of different models.
Sure, there will always be situations where there are “arguments” or “opposing views” on what model to use; this is inevitable. Given this, and the nature of litigation, it is always going to be an area where there is the potential for opposing views. With this in mind, what we need to look at is how the opposing parties are managed to a resolution in a more efficient manner – hence the carrot and stick approach as mentioned above. One extreme example might be if the Court were to appoint their own independent expert to adjudicate on what approach should be used.
In July 2021, the Disclosure Working Group proposed a series of changes to the Disclosure Pilot operating in the Business and Property Courts of England & Wales. Those changes came into force on 1 November 2021 as part of the 136th update to the Civil Procedure Rules.