Final form of the Disclosure Pilot confirmed

The Disclosure Pilot Scheme (Practice Direction 51U) was introduced in the Business and Property Courts (B&PCs) in January 2019 with the aim of bringing about a more focused approach to the disclosure of documents and reducing the time and cost spent on the disclosure process. The Pilot was extended a number of times and amended in response to feedback from users. In July 2022, the final form of the Pilot was approved.

The Pilot will operate in the B&PCs on a permanent basis from 1 October 2022 as Practice Direction 57AD "Disclosure in the Business and Property Courts". Practice Direction 57AD will apply to existing and new proceedings in the B&PCs of England and Wales. It will not apply in the County Court. Practice Direction 57AD will not disturb an order for disclosure made before October 2022, unless that order is varied or set aside.

Practice Direction 57AD is substantially in the form of Practice Direction 51U, but a small number of changes will be implemented from 1 October 2022. The substantive changes are summarised below and a redline comparison to the current Practice Direction 51U can be accessed via the link here. A copy of Practice Direction 57AD and its various Appendices can be accessed via the link here.

Substantive changes to current Disclosure Pilot with effect from 1 October 2022

1. Part 8 Claims: confirmation that, unless otherwise ordered, Practice Direction 57AD shall not apply to Part 8 claims (57ADPD 1.4), and guidance on how Practice Direction 57AD should be approached if a party does seek an order for it to apply in a Part 8 claim (57ADPD 1.12).
2. Known Adverse Documents: clarification of the definition of “adverse” documents to make clear that they relate to any of the issues in dispute not just those in the agreed Issues for Disclosure (57ADPD 2.7). Clarification of the wording in 57ADPD 3.1(2) regarding the time for disclosure of Known Adverse Documents.
3. Issues for Disclosure: additional guidance regarding the approach that should be adopted when formulating Issues for Disclosure and a reminder of the primary function of Issues for Disclosure (57ADPD 7.7).
4. Model C requests (disclosure of particular documents or narrow classes of documents): clarification that a party may address Model C requests not only to the other party or parties, but also propose the use of Model C in respect of its own disclosure (57ADPD 8.3).
5. Certificate of Compliance: confirmation that a Certificate of Compliance is not required where a Disclosure Review Document has been dispensed with (57ADPD 10.8).
6. Disclosure Certificate: confirmation that a Disclosure Certificate may be signed by the party's legal representative, provided that the legal representative has explained the significance of the Disclosure Certificate to their client and has been given written authority to sign the Disclosure Certificate on the client's behalf (57ADPD 12.6).
7. Less Complex Claims: the claim value below which (unless the other specified factors indicate otherwise) claims should be treated as ‘Less Complex Claims’ (under the simplified Appendix 5 procedure) is increased from £500,000 to £1 million (see para 3 of Appendix 5).