Taming the beast that is disclosure

Those of you who have had the tedious task of providing large quantities of documents to your lawyers for disclosure will welcome the news that approval has been given for a two-year disclosure pilot scheme to limit the scope of disclosure.

Some of you may have been fortunate enough not to experience disclosure which usually requires a party to disclose to the other parties and permit inspection of all documents that may be relevant to a party’s case.

For cases proceeding in the Business and Property Court in England and Wales (which includes the Technology and Construction Court), disclosure will now either be initial disclosure or extended disclosure. Initial disclosure will consist of the documents the disclosing party relies upon and those key documents necessary to enable the other parties to understand the claim or defence. Extended disclosure, which can be any of one of five models, will only apply if the judge feels, on an issue-by-issue basis, it is appropriate.

To put this into context, what was standard disclosure (where a party had to disclose the documents they relied upon, those which adversely affects its or another’s case or supported another’s case and those the rules dictated) has been removed in its current form and replaced by Model D. The judiciary press announcement clearly stating that this should not be ordered in every case and should not be regarded as the default position.

It is hoped, that subject to ministerial consent which will be sought later this year, the scheme will start on 1 January 2019. Although limited exceptions will apply, the rules will be applicable to existing and new proceedings across the Business and Property Courts in the Rolls Building, Bristol, Birmingham, Cardiff, Leeds, Liverpool, Manchester and Newcastle.

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