Court users have raised concerns with a new disclosure system supposed to make the process more focused and efficient. More than 200 responses came in from firms, chambers, lawyers and judges to a survey which closed in February asking a multitude of questions about the Practice Direction 57AD.
This innovation, which was intended to reduce parties’ time and costs by prompting them to provide key documents at an early stage and working from five disclosure ‘models’ setting out what was needed.
But the Judicial Office has revealed that the survey results showed the majority of users do not believe the reforms in PD 57AD have been successful.
‘Concerns were expressed that the regime had led to increased costs, had increased the burden on the courts, and had not achieved a culture change involving greater cooperation between the parties,’ the office said in a statement. ‘The majority of respondents considered that changes were necessary.’
Survey respondents did note some helpful elements of new regime, including those requiring initial disclosure and the disclosure of known adverse documents.
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The PD 57AD was introduced in 2022, applying to all existing and new proceedings in the Business and Property Courts. This followed the three-year Disclosure Pilot Scheme.
Lawyers reported practical issues, including difficulty meeting the requirement that the disclosure review document for agreeing the list of issue for disclosure should be ‘as short and concise as possible’.
Finding the most appropriate model for disclosure has been found to have added to the work required in the early stages, undermining the purpose of costs savings - particularly in multi-party claims.
The first sign that the authorities were concerned about the operation of PD 57AD was in 2024, when the president of the King’s Bench Division convened a working group to look at aspects of the changes, including the use of technology-assisted review and artificial intelligence. The working group was also asked to consider whether the new practice direction had actually saved costs, improved the accuracy of disclosure, reduced the burden on courts and improved cooperation among litigants.
The working group has now been expanded under the chairmanship of Mr Justice Butcher with representatives from the Commercial Bar Association, the Chancery Bar Association, the Technology & Construction Bar Association, the London Solicitors Litigation Association and the Technology and Construction Solicitors’ Association.
The initial view of the group is that the existing regime should be simplified. Proposals will be made to the Civil Procedure Rules Committee and then opened to public consultation.
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