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Disclosure Pilot needs to change course

24/09/2020

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United Kingdom

This week has seen the publication of a feedback report on the Disclosure Pilot Scheme (the "Pilot"). The Pilot was introduced to the Business and Property Courts at the start of 2019 and, following a recent extension, is set to continue until the end of 2021.

The report analyses feedback legal practitioners (including from Fieldfisher) provided on their experience of the Pilot (which is intended to be a "living pilot") in a Questionnaire prepared by Professor Mulheron of Queen Mary University, the Pilot's official monitor. In our previous blog, published in November 2019, we provided our honest views on how the scheme was working in practice. Our views were provided in response to the Questionnaire in the hope that this would help to improve the direction of travel for the Pilot.  

We are fast approaching the end of the second year of the Pilot, which was first introduced as a two-year test-scheme. The Pilot's aim was to initiate a "culture change" to the attitude of parties towards disclosure and ultimately to reduce costs. As our previous blog made clear, in our view it has failed to achieve its objective.  

Comments included in the recently published report echo our own feedback, as fellow practitioners have branded elements of the Pilot as "monstrously difficult" and "hopelessly laborious", with costs being "triplicated".

It is clear from the report that the Pilot has comprehensively failed to achieve its cost saving aim. It reveals that only 4% of respondents reported costs savings; whilst an overwhelming 85% revealed costs had actually increased as a result of the Pilot. 

What's next?

The report has informed a number of proposed amendments to the Pilot, which are discussed in the Update on the operation of the Disclosure Scheme published by the judiciary this week. The proposals include suggested amendments to PD51U and to the overly complex Disclosure Review Document requiring completion by the parties. Currently the proposed amendments have no formal status and need to be considered by the Civil Procedure Rule Committee.

Based on the limited nature of the current proposals to amend the Pilot, in our view the changes will not go far enough to alleviate our concerns, particularly in large and complex disclosure exercises. As previously indicated, in our view, expenditure would be better targeted on AI and other technological assistance in reviewing documents to reduce the number of documents requiring review and to therefore eliminate the premise for the Pilot, that document review is necessarily disproportionate and costly.

As the Pilot enters its third year of operation there will be a further opportunity for practitioners to give feedback on the Pilot alongside a survey of the judiciary to ascertain their views and experiences of the scheme. We intend to give feedback on our views on the Pilot when the opportunity arises.

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