The rules surrounding civil procedure are constantly being chopped and changed, and it is not uncommon for reforms to be deeply unpopular (costs budgeting, anyone?). What rarely seems to happen, however, is for a new regime to be so disliked by litigators that the senior judiciary actually slams on the brakes and changes direction. Yet this is what may be about to happen to the disclosure regime in the Business and Property Courts.
The current rules were originally introduced through a 2019 mandatory pilot, which formed the basis of a new disclosure regime (under PD 57AD) that came into force in October 2022. A great deal of time, effort and thought went into devising the new rules, which were intended to address the concerns of large corporate defendants alarmed by the spiralling costs of disclosure in the world of big data. But it seems the cure has proved worse than the disease. The disclosure changes have been massively unpopular from the outset – with lawyers and clients alike.
Earlier this year, more than 200 lawyers responded to a survey from the judiciary-led Disclosure Review Working Group seeking views on how the regime is operating. A summary of the responses was published at the end of July. The findings were stark: just 19% of respondents described the regime as a success, while 64% disagreed or strongly disagreed that it was successful.
The feedback was not entirely negative: some lawyers praised the way the rules make parties engage with one another at an earlier stage, with positive benefits. The ‘initial disclosure’ element can bring key documents into view early on; while the ‘list of issues for disclosure’ was thought by some to be useful in focusing the disclosure exercise – although others griped that it creates disputes, cost and delay, especially where issues are drafted too broadly, too narrowly, or too early in the case.
Criticism of the regime mainly revolved around concerns about its cost, complexity and proportionality. The flip side of early engagement with disclosure is an inevitable front-loading of costs, with more work at the very outset. Meanwhile, one particularly unpopular aspect was the ‘disclosure review document’ (DRD), which caught considerable flak from lawyers. A recurring theme in the survey responses was that parties are forced to spend substantial time and money negotiating the DRD at a point where they do not yet have enough information about ‘the real document universe’.
The new disclosure regime was intended to give great flexibility, presenting lawyers with a veritable smorgasbord of five different ‘models’ to choose from, depending on the level and type of disclosure sought. In practice, however, lawyers have largely ignored the more exotic menu options and stuck to the equivalent of burger and chips: the search-based ‘Model D’, which is the closest thing to the familiar ‘standard disclosure’ of the previous regime. More than half of the survey respondents said they would prefer to see the number of models cut down, to avoid unnecessary complexity.
Ever since the new regime was first piloted, lawyers have not been coy about voicing their concerns. In a 2020 feedback report, for example, they slammed aspects of the scheme as ‘monstrously difficult’ and ‘hopelessly laborious’ (see tinyurl.com/4b9brm49). While the regime has undergone a few tweaks along the way, the judiciary has never been in any doubt as to what lawyers think of it, and the results of the working group’s survey will have come as no surprise.
Now, nearly four years on from the scheme’s formal introduction, the senior judiciary is finally taking more radical action. It has made clear that it will not be turning back the clock and returning to the previous rules. But it has acknowledged that the survey results point to a ‘disclosure regime under significant pressure’. Later this year or by early 2027, it will put forward a series of proposals for ‘simplification’ of the disclosure regime in the Business and Property Courts, ‘with a view to reducing complexity, front-loading and cost’.
For the vast majority of lawyers and clients in these courts – and, one suspects, the judges who sit in them – meaningful change to these misguided reforms cannot come soon enough.
Rachel Rothwell is editor of Gazette sister magazine Litigation Funding
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