What's up with disclosure? The pilot goes into a new phase from November

November ushers in a brand new phase for the disclosure pilot with several substantive amendments being made to the rules.

The main change is the addition of a new "Less Complex Claims" route, but there are also amendments to accommodate multi-party litigation, as well as various other changes to streamline the list of issues for disclosure, DRD, and use of models. Particular emphasis is also given to disclosure guidance by the court, which can now take place on the papers as well as in a hearing.

True to its "living pilot" status, this revision of PD 51U addresses feedback given by court users. The changes have been packed into a relatively speedy practice direction update, with a short turnaround time from the proposals of the Disclosure Working Group to the official practice direction update which came into force on 1 November 2021. Below we give an overview of the most important changes to the rules, and also consider what may be next for the disclosure pilot.

New Less Complex Claims route

There is a new Less Complex Claim route under PD 51U with a simplified disclosure procedure. Only Models A, B or D can be used, and there is a maximum of five issues for disclosure. A Less Complex Claim is a "claim which by virtue of its nature, value, complexity and the likely volume of Extended Disclosure may not benefit from the full procedure set out in the main body of PD51U" and/or the value is less than £500,000 (see new Appendix 5). There is also a new form DRD for the Less Complex Claims Route.

Multi-party cases – PD 51U procedure can be flexible

For multi-party cases, there is now clarification in the rules that PD 51U does apply, but also that the court can vary the timetable and procedure to meet the needs of such a case. Any application to the court in this regard should be made at an early stage. Parties should discuss and seek to agree whether it is appropriate for all of the disclosing party’s documents to be given to all of the other parties or to some only. This is intended to ease the burden of multi-party disclosure in appropriate cases.

Streamlining the list of issues for disclosure

There are several changes to how the parties must deal with the list of issues for disclosure. Two of these appear to incentivise parties to act within the cooperative spirit of PD 51U: when agreeing the list of issues for disclosure, reasonable and proportionate efforts must be made. There is also now an explicit requirement that the list of issues for disclosure should be as short and concise as possible.

Other changes are more practical. Any draft list of issues for disclosure now needs to identify disclosure model(s). As for timing, a party served with a draft list of issues for disclosure now has 21 days to respond (this was previously only 14 days). Where a claimant fails to prepare and serve a list of issues for disclosure, this now means that any defendant can do this instead.

For efficiency, a list of issues for trial can now be used in place of a list of issues for disclosure. It is also worth noting that the list of issues for disclosure now explicitly does not bind the parties at trial.

More flexibility for the DRD

The changes also specify more flexibility with regard to the DRD.  In a complex case, the DRD can be shortened or lengthened. Parties can revise the questions in s2 of the DRD or add new questions. The parties can also agree a revised timetable for completion of the DRD as long as the CMC is not affected.

Use of models

PD 51U now emphasises that moderation must be exercised in the number of models used. At the same time, different models can be applied to different types of documents, eg one model for physical documents and another model for electronic documents.

Various miscellaneous changes come into play in relation to Models C and D. It is now explicitly required that Model C issues for disclosure should be limited in number, focused in scope and concise – likely a response to excessively long lists seen in some cases. Also, it is now explicit that Model C requests should not be used in a tactical or oppressive way.  Previously, there was a requirement that a party proposing Model C had to fill in section 1B and provide the DRD to the other parties no later than 28 days after the defendant's response to the claimant's draft list of issues for disclosure. This requirement has now been removed.

In relation to Model D, narrative documents now do not necessarily need to be excluded where the court has not specified in the order whether to include or exclude narrative documents. The intention appears here to save costs where the splitting out of narrative documents would prove to be complicated.

Court guidance

There are new provisions setting out detail on court control over disclosure, and clarification that disclosure guidance can be given by the court in a hearing or on the papers.  This may be a response to limited uptake of disclosure guidance hearings. 

More evolution of the pilot in the future?

While the changes clearly constitute a significant update to the workings of PD 51U, it could also be said that some changes, such as the changes to accommodate multi -party litigation, only codify what has happened in practice already to make the pilot work. 

Further evolution of the pilot seems to be highly likely in the future. The Disclosure Working Group is planning to engage with the judiciary and court users later this year, with the prospect of reverting to the CPRC with possible further amendments in 2022 (see the CPRC Minutes 10 September 2021). So far, the CPRC has generally followed the recommendations put before it when it comes to revisions to the pilot.

PD 51U is set to be in force until December 2022. There is no clarity as yet as to whether it is set to replace the "regular" rules for disclosure under CPR 31 from 2023. It has been made clear that continuous feedback from those using the pilot is welcomed by the Disclosure Working Group, so that those who would like to influence the future of disclosure rules are well advised to give their feedback while PD 51U is still in the pilot phase.