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 and prevent parties from disclosing significant amounts of irrelevant documentation to impede the other party.
This article discusses some of the benefits and disadvantages of the new scheme and considers how it may affect litigation going forwards.
Tightening the scope
The aim of the DPS is to limit the amount of documents being disclosed by the parties so that only key and critical documents are disclosed. Historically, parties have used “document dumping” as a tactic to make it harder for their opponent to identify key documents and also as a mechanism to increase their costs. The staged disclosure process should help to prevent this by (i) making disclosure more manageable and (ii) giving parties access to all the key documents at a much earlier stage.
Bringing down the costs
It is hoped that by limiting the type of documents that need to be disclosed, this will help to reduce the costs associated with disclosure. However it is yet to be seen whether a reduction in costs will actually be achieved. A key requirement of the DPS is that the parties must agree a List of Issues and if one party is particularly combative or a litigant in person, this may result in increased correspondence with the parties intensely negotiating what should be included.
The avoidance tactic
There are concerns that the more limited scope of the DPS may allow parties to avoid disclosing documents that are relevant and material to the issues. Under the current rules, parties have a tendency to include “more rather than less” to avoid falling foul of the disclosure rules. That being said, we anticipate that there will be opportunities for parties to seek additional orders if they consider that their opponent has not complied fully with their disclosure obligations. As the DPS is still very much in the early stages, it is still unclear precisely how this process will work.
Under the new rules, parties are required to contact any former employees and third parties who may hold relevant documents relating to the dispute and inform them of their duty of disclosure. There may be a number of reasons why a professional claimant or defendant may not wish to put former employers or third parties on notice of a potential claim (particularly if they are unsure whether it will amount to anything). If a company/ professional does not think that the threshold to contact former employees/ third parties has been met initially, it may be prudent to keep a written record setting out the justification for this to ensure that their position is protected in the event that their decision is challenged.
The new scheme should help the parties to focus on attempting to reach a negotiated settlement because disclosure is now more “front loaded”. There is an emphasis on parties disclosing adverse documents early on in the proceedings which means they should be able to understand the strengths and weaknesses of their case much sooner. This should help to assist early disposal of weak claims before costs escalate.
It is still yet to be seen whether the DPS will achieve the judiciary’s objective of making the disclosure process more streamlined and cost-effective. The main benefit is that it encourages parties to engage in the issue of disclosure at a much earlier stage in proceedings which ultimately may result in more cases being settled before substantial costs have been incurred. However there are still a number of grey areas in terms of how the DPS will work and practice; in particular the practicality of the List of Issues and the risk of non-disclosure. It will be interesting to see how the DPS evolves and whether the Court decide to roll it out to the other courts when the pilot scheme ends.