The mandatory Disclosure Pilot Scheme ("DPS") was introduced on 1 January 2019 for two years in all Business and Property Courts in England and Wales. It replaced the existing rules in CPR 31 in applicable proceedings with an aim to promote proportionality and a streamlined approach to disclosure. In a series of blogs, we look at the impact of, and key learning from, the DPS in its first year.

The DPS and its objectives

The objectives of the DPS are to:

  1. Limit the costs, scale and complexity of the disclosure process;
  2. Achieve a more efficient and flexible disclosure process tailored to each case;
  3. Encourage the use of technology; and
  4. Ensure key documents are disclosed at an earlier stage.

The rules governing the DPS are contained in the Practice Direction 51(U) ("PD51U"). Key changes include: a requirement to disclose relied upon or adverse documents when serving statements of case (Initial Disclosure); an increased focus on issues which require disclosure (List of Issues for Disclosure); and a requirement for parties to attempt to collaborate to complete a Disclosure Review Document prior to the Case Management Conference. There is also the introduction of five different 'Models' of extended disclosure, which range from disclosing only known adverse documents through to a wide search-based disclosure which goes further than the previous standard disclosure.

As we enter the second half of the DPS, several cases have already been brought before the Courts which offer guidance to parties when dealing with proceedings subject to the DPS. This three-part series takes a look at key cases, the lessons they offer and thoughts on what the future holds for disclosure in England and Wales.

Practical lessons from the first year of the DPS

The Courts can make an order for specific disclosure

In White Winston Select Asset Funds LLC v Mahom and another [2019] EWHC 1014, the High Court considered the position where an order for standard disclosure was previously made and an application for specific disclosure (CPR 31.12) was made once the DPS was introduced.

In this case the Defendant had failed to provide categories of documents that were considered to be relevant to the case and the Claimant made an application for specific disclosure.

It was considered that the Court did not have jurisdiction under CPR 31.12 as that had been replaced by the DPS and it was not obvious which part of the DPS would allow the Court to make "the equivalent" of a specific disclosure order. The difficulty was that paragraph 18 of the DPS (which sets out the specific disclosure process) applied in the context of Extended Disclosure, a new DPS concept which was not previously applicable to this case.

The judge concluded that under the Court's general management powers, it had jurisdiction to make "the equivalent of an order which could previously have been made under CPR 31.12" to ensure the Defendants complied with their disclosure obligations.

Parties to litigation that has become subject to the DPS should therefore not assume that the Court will not have jurisdiction to make disclosure orders, in particular specific disclosure. It appears that in the absence of guidance stating otherwise, the Courts will still retain this ability under their general powers.