‘Less complex claims’ worth less than £500,000 will be able to opt into a simplified disclosure regime under plans for reform of the disclosure pilot in the Business and Property Courts published today.
The proposals will also enable multi-party cases to avoid the prescriptive disclosure pilot rules in favour of active case management by a judge.
A set of modifications to the pilot scheme has been drawn up by the disclosure working group based on engagement with the profession, and was put before the Civil Procedure Rule Committee (CPRC) earlier this month. The proposals do not yet have formal approval, but have largely been agreed in principle.
The changes will introduce a lighter regime for straightforward claims that are worth less than £500,000, or that could be considered ‘less complex claims’ due to their nature.
Such claims will be subject to a simple, high level disclosure review document requiring very little detail. The range of disclosure options on offer will be limited to no disclosure (‘model A’), reliance disclosure (‘model B’), or standard disclosure (‘model D’). Lawyers will only be able to list a maximum of five issues for disclosure, which must be kept brief.
Parties can agree with one another to opt into the ‘less complex claims’ disclosure regime, or it can be ordered by the court.
The reform proposals also address multi-party claims, where lawyer feedback highlighted serious difficulties with the pilot scheme; for example in getting numerous defendants to agree a list of issues for disclosure. Proposed amendments to the practice direction state that while the pilot does apply to multi-party claims, the court may choose to vary the timetable and procedure to the bespoke needs of the individual case. This will facilitate a more tailored approach to disclosure by the docketed judge managing the case.
Further changes seek to rein in the use request-led, search-based disclosure (‘model C’), which is currently being overused; with parties required to give more detail on how they intend to use model C disclosure at an earlier stage. The changes also take a softer, more pragmatic approach to the need to exclude ‘narrative documents’ of marginal relevance, to avoid excessive costs being spent on this.
In relation to the little used ‘disclosure guidance hearings’, the practice direction will be amended to remove the emphasis on a hearing, and make clear that disclosure issues can be determined on paper.
The CPRC has approved the extension of the disclosure pilot scheme until 31 December 2022, to allow the amendments to bed in and give time for further improvements if needed. Formal CPRC and ministerial approval of the proposed modifications may be granted in October or January. Until then, practitioners can apply to the court to begin making use of the draft rules in their existing cases, where approporiate.
Working group member Ed Crosse said: ‘The group is extremely grateful for all the feedback it received… and for the suggestions on how the identified areas of challenge might be addressed through amendments to the Practice Direction. The pilot has been extended by a further year, and the working group welcomes any further input on these changes and its operation.’