Disclosure and multi-party disputes

On 1 October the Disclosure Pilot Scheme (DPS) became PD57AD, ‘Disclosure in the Business and Property Courts’, of the Civil Procedure Rules. It applies to all existing and new proceedings (subject to limited exceptions) in the Business and Property Courts. 

The DPS has been tried and tested over the last three years and has been reviewed in response to feedback from practitioners. Minor amendments that have been included in PD57AD are:

• Confirmation that, unless otherwise ordered, PD57AD shall not apply to Part 8 claims.
• Clarification regarding the time for disclosure of known adverse documents (and clarity that adverse documents do not need to be disclosed during initial disclosure).
• Additional guidance regarding the approach that should be adopted when formulating issues for disclosure.
• Confirmation that a party may address Model C requests not only to the other party or parties, but also propose Model C for its own disclosure.
• Confirmation that a disclosure certificate may be signed by the party’s legal representative, provided that they have explained the significance of the disclosure certificate to their client and have written authority to sign the disclosure certificate on the client’s behalf.
• Increasing the default threshold for ‘less complex claims’ (in relation to which a simplified disclosure regime applies, subject to agreement by the parties or court order) from £500,000 to £1m.

The DPS was endorsed by both the chancellor of the High Court, Sir Julian Flaux, and master of the rolls, Sir Geoffrey Vos, with the conclusion being that it had been successful in its aim to make the disclosure process more focused and efficient, thus reducing parties’ time and costs. Indeed, Sir Julian confirmed that there has been much earlier consideration and engagement which has led to ‘a dramatic decline in the number of post-CMC applications for specific disclosure’.

However, there has also been criticism that PD57AD means parties spending more time (and money) early on in proceedings, in order to comply with the regime and to ensure the disclosure process achieves its aims in the context of each claim.  

We are aware of a number of issues faced in practice, particularly in respect of high-value complex construction disputes, such as negotiating and reaching agreement on:

• The disclosure review document, specifically in relation to agreeing the list of issues for disclosure, which must be ‘as short and concise as possible’. This is often difficult to achieve when there are numerous contemporaneous documents and with wide-ranging, and often technical, issues in respect of scope of works, design, variations and so on, against which disclosure is needed.  
• The most appropriate disclosure models for extended disclosure. Model C requires the parties to disclose particular documents or a narrow class relating to a particular issue, appearing more limited than model D (and therefore less onerous and costly). However:

1. In order to reach agreement, the parties have to go through an iterative and time-consuming process. This invariably ends up with what is effectively standard disclosure (model D) (as identified in Energy Works (Hull) Ltd v MW High Tech Projects UK Ltd (No.2) [2020] EWHC 1699 (TCC)).
2. Unsurprisingly, there are practical difficulties in adopting multiple models against multiple issues in multi-party litigation. The alternative of adopting the same model against all issues for disclosure for all parties rather undermines the purpose and intent of PD57AD.

Therefore, while the intention of the regime is to significantly reduce the cost of disclosure by narrowing disclosure and reducing the number of documents, to the extent standard disclosure is avoided, any significant cost saving may be negated by the amount of work required in this frontloaded process.  

Some of these issues, which can be exacerbated in multi-party claims (often the case with construction disputes), were identified by the Disclosure Working Group and this led to a change to the DPS in November 2021.  

It is now recognised that the regime will not always be suitable for complex multi-party claims. Parties in multi-party cases can therefore apply to the court to order a ‘bespoke’ timetable and procedure to meet the specific needs of the case.

While there has been a case where the regime was adapted to fit a multi-claimant dispute, and it is useful to show the issues associated with group claims, this was specific to the facts in Upham and others v HSBC UK Bank Plc [2022] EWHC 1843 (Comm).  

It therefore remains to be seen how this will be adopted across other multi-party disputes and how effective it will be, particularly in respect of the construction industry, which typically generates technically complex and document-heavy disputes.  

Time will also tell whether or not PD57AD really signifies a sea change in the approach to disclosure or whether it is actually standard disclosure by another name.

In the interim, we must continue to take a pragmatic and proportionate approach to disclosure under the regime, and ensure that the requirement to narrow the scope and reduce costs is balanced against the need to obtain access to those crucial documents.

Jennifer Fitzmaurice is a principal associate PSL and Kiren Dillon a principal associate at Eversheds Sutherland