What is the Disclosure Pilot Scheme?
The Disclosure Pilot Scheme (or the “DPS”) is a new scheme which was introduced by the Courts with a view to reduce the costs associated with disclosure.
What type of disputes does it apply to?
The DPS applies to all claims in the Business & Property Courts of England and Wales issued after 1 January 2019. It can also apply to claims issued prior to this date if disclosure has not already taken place.
When do I have start thinking about it?
The DPS requires parties to think about document preservation at a very early stage. Various obligations come into play as soon you know that legal proceedings may be issued. These include:-
- Stopping any destruction policies
- Provide written notification to relevant employees (and former employees) about the requirement to preserve documents
- Inform agents and third parties about the disclosure obligations
What are the key stages once proceedings have been issued?
Once proceedings have been issued, the DPS introduces a two stage procedure:
Stage 1- Initial Disclosure
As part of this stage, you are required to provide copies of any key documents when you file your statement of case (i.e. Particulars of Claim or Defence). Initial Disclosure can be avoided in certain circumstances such as when there are large numbers of documents or by agreement between the parties.
Stage 2- Extended Disclosure
A party wishing to seek disclosure of documents in addition to those provided during the Initial Disclosure process must make a request for Extended Disclosure. There are a number of “Disclosure Models” that the parties can chose from. These range in complexity and involvement. We will be publishing a further article which explains the different types of Disclosure Models in more detail.
The Claimant must prepare a draft List of Issues for Disclosure. This will identify the key issues in dispute which the parties think that will need to be determined by the Court with reference to the key documentation.
What happens if I have a document with harms my case?
One of the main disclosure obligations is a requirement to disclose (regardless of any order for disclosure made) all relevant documents once proceedings have been commenced irrespective of whether a document may adversely affect your position. A document is “adverse” if it or any information it contains contradicts or materially damages your case.
After the CMC, each party will have to provide a Disclosure Certificate certifying that all known adverse documents have been disclosed. It is therefore important that you provide your legal advisor with any documents you think may be harmful to your case as soon as possible so that they can review these and advise you accordingly.
Is there anything I should do now?
Check your document retention policies
We would recommend that you should review your current document retention policies to ensure that your policies reflect the requirements under the DPS. As a general rule, contractual claims must be brought within 6 years of the date of the breach. We are aware that many businesses will destroy documentation well in advance of this time period if there is no known dispute. Destroying documents before the expiry of the limitation period could have a detrimental effect on any future litigation.
Be alive to potential disputes
As you will have seen, the new disclosure rules are fairly onerous. The Court can order sanctions for non-compliance and it is therefore important that you are aware of the obligations you need to comply with and take action at an early stage. Even if you are unsure whether you will need to issue/ defend legal proceedings, it is sensible to obtain legal advice in respect of the disclosure obligations to ensure that you do not fall foul of the rules.