{"id":35676,"date":"2019-05-14T21:44:41","date_gmt":"2019-05-14T21:44:41","guid":{"rendered":"https:\/\/www.consilio.com\/resource\/the-new-disclosure-rules\/"},"modified":"2021-04-16T10:06:14","modified_gmt":"2021-04-16T14:06:14","slug":"the-new-disclosure-rules","status":"publish","type":"avada_portfolio","link":"https:\/\/jp.consilio.com\/resource\/the-new-disclosure-rules\/","title":{"rendered":"The New Disclosure Rules"},"content":{"rendered":"

The New Disclosure Rules<\/h1><\/span>
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How the new disclosure rules impact approaches to preservation and collection<\/h2>\n

By Dr Tristan Jenkinson<\/h3>\n<\/div>

The New Disclosure Rules are currently (as of 1 January 2019) part of a two-year pilot within the Business and Property Courts of England & Wales.<\/p>\n

In 2016 a disclosure working group was created following growing concerns over the increasing costs of litigation. The working group created a new draft practice direction which was subsequently updated following consultation. The resulting draft (and the corresponding Disclosure Review Document \u2013 \u201cDRD\u201d), has now been included in the Civil Procedure Rules as Practice Direction 51U1<\/sup>, and are commonly referred to as the \u201cNew Disclosure Rules.\u201d<\/p>\n

It is envisaged that if the pilot is a success, that the practice direction would be applied more widely.<\/p>\n<\/div>

Key New Points for Consideration<\/h2><\/span>
<\/div><\/div><\/div>

Duties of Parties and Lawyers Are Expressly Stated<\/h3>\n

The principles of the practice direction, and the relevant duties of parties involved, are clearly and expressly stated. These include specific requirements relating to preservation.<\/p>\n

Under paragraph 4.4, for example, legal representatives must notify their clients of the need to preserve documents (as well as other obligations) but must also obtain written confirmations that their client has taken such steps. Additionally, each party must also confirm in writing (when particulars of claim\/defence are served) that steps have been taken to preserve relevant documents.<\/p>\n

Other duties include the duty to cooperate and engage with opposing parties to promote a cost-efficient approach, as well as the duty to disclose known adverse documents, which is required, no matter which model is ordered to be used for disclosure.<\/p>\n

No More \u201cStandard Disclosure\u201d<\/h3>\n

The approach previously termed \u201cstandard disclosure\u201d does not appear (directly) in the new rules. Instead it is suggested that there will be a two-stage approach to disclosure. The new approach also incorporates the use of a new Disclosure Review Document. This document acts similarly to the Electronic Documents Questionnaire (Form N264) although there are some significant differences.<\/p>\n

Initial Disclosure<\/h3>\n

Under the new disclosure rules, unless excluded (for example by agreement or order of the court) there will be an initial disclosure, which will be provided at the same time as the statement of case. This initial disclosure should include the key documents relied upon in producing the statement of case and other key documents which are necessary for other parties to understand the claim or defence.<\/p>\n

The initial disclosure is not designed to be extensive or burdensome and should not exceed 200 documents or 1,000 pages. If a party concludes that the initial disclosure would exceed these values, then, by confirming in writing, it may be possible to dispense with the initial disclosure. It seems likely that this will be a common occurrence in many commercial cases.<\/p>\n

The working group envisaged that in some cases initial disclosure may not be required at all, while in others it may resolve the need for any further disclosure exercise(s).<\/p>\n

Disclosure Review Document and Issued Based Approach for Extended Disclosure<\/h3>\n

As mentioned, replacing the Electronic Documents Questionnaire is the new Disclosure Review Document (\u201cDRD\u201d). This document is designed to assist parties and their advisors to co-operatively discuss and identify a proportionate and cost effective approach to disclosure. The DRD should be completed after the closure of the statement of case, but before the case management conference.<\/p>\n

One of the key points of the DRD is to identify the key issues in the dispute which the extended disclosure (i.e. disclosure subsequent to the initial disclosure exercise) should provide information on. This is because the new approach is designed to be more \u201cissues based\u201d.<\/p>\n

The focus on an issues based approach is further demonstrated by the requirement under the DRD to exchange details of how disclosure will be approached for each issue. This allows for different approaches across the different issues at play.<\/p>\n

The different approaches are referred to as disclosure Models. There are five disclosure Models that can be applied, referred to as Models A to E.<\/p>\n