The new face of disclosure: a three-year journey in the Business and Property Courts

As we mark the third anniversary of Practice Direction 57AD, it’s time to reflect on its impact, challenges, and the evolving best practices in disclosure within the Business and Property Courts of England and Wales.

PD57AD replaced the Disclosure Pilot Scheme in PD51U and made it a permanent part of the Civil Procedure Rules. It was a pivotal step in modernising litigation, aiming to address longstanding issues of cost, complexity, and inconsistency. Now, with three years of experience, legal practitioners, judges, and clients are assessing its effectiveness – both intended and unforeseen.

This article explores how PD57AD has reshaped disclosure practice, the extent to which it has delivered cultural change, and the practical realities faced by those operating within its framework.

A reminder of the scope, aims and achievements of PD57AD

Disclosure is a fundamental component of civil litigation, ensuring transparency and fairness by requiring parties to share relevant documents. PD57AD governs disclosure in the Business and Property Courts. It applies to both new and existing proceedings, excluding those in the County Court.

The goals of PD57AD are clear:

• Promote proportionality and cost-effectiveness
• Focus on key issues in dispute
• Encourage early engagement and collaboration
• Introduce a structured framework for disclosure 

This framework includes:

• Initial Disclosure: Key documents relied upon and those necessary to understand the case.
• Extended Disclosure: If needed, parties agree on one or more of five Disclosure Models (A to E), each varying in scope.

Judicial commentary suggests PD57AD has succeeded in shifting the culture of disclosure, with a “dramatic decline” in post Case Management Conference (CMC) applications for specific disclosure, indicating earlier and more effective engagement.

Key learnings and developments

Early engagement is crucial

Early involvement of disclosure experts and eDisclosure providers is essential. It reduces risk, avoids duplication, and streamlines the process. Early data collection helps assess the volume of data and resources required, feeding into a more accurate cost budget. While courts can defer disclosure budgeting (PD57AD para 22), early budgeting is encouraged.

Data preservation is critical

Parties must take reasonable steps to preserve disclosable documents. Identifying the location of relevant hard copy and electronic documents at the outset is critical. This includes data held by all custodians across devices and platforms. In West African Gas Pipeline Company Ltd v Willbros Global Holdings Inc [2012] EWHC 396 (TCC), inadequate scoping led to piecemeal disclosure, increased costs, and disruption. Proper preservation is vital to ensure the success of both the disclosure and the outcome of the claim.

Key impacts

Since its formal adoption, PD57AD has had a significant and multifaceted impact on disclosure practice in the Business and Property Courts. While its overarching goal was to promote proportionality and reduce unnecessary costs, its implementation has triggered both positive developments and practical challenges.

1. Cultural shift towards proportionality. PD57AD encourages parties to move away from broad, default disclosure and focus on what’s necessary to resolve disputes. The Disclosure Review Document (DRD) and justification for Extended Disclosure foster a more strategic approach, especially in complex cases.
2. Increased front-loading of work. Litigation now demands more effort at earlier stages. Preparing DRDs, agreeing on disclosure models, and engaging in pre-CMC dialogue require significant upfront investment. While this can lead to later efficiencies, it raises concerns about cost and timing.
3. Enhanced judicial oversight. Judges now play a more active role in managing disclosure. The structured framework and DRDs offer greater visibility of the parties’ positions, enabling more informed decisions and reinforcing proportionality. 
4. Mixed reception among practitioners. Practitioners acknowledge the benefits of a disciplined process but cite the administrative burden of DRDs, especially in multi-party or high-volume cases. Success often depends on party cooperation and clear judicial guidance.
5. Technology and disclosure. PD57AD has accelerated the adoption of Technology Assisted Review (TAR) and other eDisclosure tools. These solutions help manage large data volumes efficiently, improving accuracy and reducing costs.

Technology is here to stay

TAR and Continuous Active Learning (CAL) are increasingly accepted and encouraged by the courts. These tools reduce manual review, enhance precision, and lower costs. Understanding capabilities and validation metrics remain areas for continued education.

Ongoing challenges

Despite its ambitious aims and structured framework, PD57AD continues to present several practical and procedural challenges that have tempered its initial promise. As the legal community gains more experience with the regime, several recurring issues have emerged:

• Complexity and administrative burden: 
  The Disclosure Review Document (DRD) is often seen as overly detailed and time consuming, especially in multi-party or data-heavy cases. It can shift focus from substantive issues to procedural disputes. The level of detail required can also lead to disputes over form rather than function.
• Inconsistent application: 
  Despite offering a standard framework, PD57AD is applied differently across cases depending on the judge, nature of the dispute and parties involved, leading to unpredictability in how disclosure obligations are interpreted and enforced.
• Front-loading costs without guaranteed savings: 
  While PD57AD aims to reduce overall litigation costs, its emphasis on early planning and engagement can lead to significant upfront expenses. For parties with limited resources, this investment may not be worthwhile - especially if the case settles before trial.
• Limited technological integration:
  Despite encouraging the use of eDisclosure tools, PD57AD lacks standardised guidance on TAR. Smaller firms or parties without access to platforms may struggle to meet expectations, creating inequality in disclosure capabilities.
• Cultural resistance:
  The regime requires a shift toward cooperation, transparency, and strategic thinking- traits that may conflict with traditional adversarial approaches. While many practitioners have adapted, some remain hesitant, particularly in high-stakes litigation.
• High-value, multi-party disputes:
  Especially in construction and commercial litigation, practitioners face challenges in:
  • Agreeing on concise, focused issues for disclosure
  • Selecting appropriate models, particularly between Model C (targeted disclosure) and Model D (broad search-based disclosure)

These difficulties often stem from the technical nature of disputes and the volume of contemporaneous documentation.

What’s new

Refinements to the rules

Feedback from practitioners has led to minor but meaningful amendments to PD57AD, including:

• Clarification on the timing of adverse document disclosure (PD57AD para 3.1(2)).
• Flexibility in who may sign the Disclosure Certificate (legal representatives can sign on behalf of a client, with client’s express consent, explaining the significance of the certificate to the client).
• Raising the threshold for “less complex claims” from £500,000 to £1 million allowing more cases to benefit from simplified procedures (PD57AD Appendix 5).

Recent guidance from the courts

In the case of BDW Trading LTD v Ardmore Construction Ltd [2025] EWHC 1063 (TCC), we learnt that the court can issue a Costs Management Order at any stage in the proceedings, offering flexibility in managing disclosure costs. The court allowed the claimant to  increase the disclosure phase of its 2024 budget.  It also clarified that document volume does not directly determine cost – quality and complexity matter more than quantity.

In Voltaire Capital Holdings Ltd v Watson [2025] EWHC 1948 (Comm) the court discussed the proper use of disclosure guidance hearings under paragraph 11 of PD57AD. Such a hearing should be a reasonably informal procedure and not a fully contested formal application for disclosure.

Conclusion and the future

Three years on, PD57AD has made significant strides in reshaping disclosure within the Business and Property Courts. While challenges remain – particularly in complex cases – the practice direction has fostered a more proportionate, collaborative, and technology-driven approach.

While PD57AD has brought about a more disciplined and transparent disclosure process, it is not without its critics. Some argue that front-loading disclosure efforts increases early-stage costs. However, the consensus is that these investments often lead to fewer disputes later, saving time and money overall. As the courts and practitioners continue to adapt, further refinements may emerge – particularly around standardising the use of AI tools, streamlining the DRD, and training legal teams in digital disclosure best practice.

As disclosure continues to evolve, ongoing dialogue between practitioners, judges, and clients will be essential to refine best practices and ensure the system remains fit for purpose in an increasingly digital and data-heavy litigation landscape.

Looking ahead, the success of PD57AD will depend not only on procedural compliance but on a sustained cultural shift. True reform lies in the willingness of parties, practitioners, and the judiciary to embrace collaboration, transparency, and innovation. As disclosure continues to evolve, PD57AD remains a critical foundation – one that will influence broader civil justice reform for years to come.

For any queries relating to litigation or disclosure, please contact the firm directly Contact us | Mills & Reeve. Our team remains available to provide comprehensive support and expert advice.