Overview of the Disclosure Working Group Reform Proposals Hon. Mr Justice Robin Knowles CBE Chief Master Matthew Marsh 23 January 2018

Origins of the Disclosure Working Group GC100 Feedback in April 2016 London Solicitors Litigation Association / New Law Journal 2017 Survey 70% feel that the current disclosure regime has been ineffective in controlling the burden and costs of disclosure No proper engagement between parties Perceived lack of robust case management by the Courts Menu of disclosure options rarely used – standard disclosure is the default Insufficient use of technology Part 31 is not fit for purpose – focuses on paper based disclosure Establishment of the Rolls Building Disclosure Working Group in May 2016

DWG: Key objectives of the DWG Re-write and modernise the current rules on disclosure (CPR Part 31) Encourage a change in culture and approach to disclosure by parties and Courts Introduce express duties such as duties to cooperate and engage Encourage more effective use of technology Ensure that the Court has the information it needs at the CMC to make robust and informed decisions about disclosure Improve the menu of disclosure options to encourage a move away from standard disclosure as the default option

Express duties on parties and their lawyers Duties on parties to: preserve documents that may be relevant undertake any search in a responsible and conscientious manner act honestly disclose adverse documents (of which they are aware) regardless of whether an order for Extended Disclosure is sought or made not to “document dump” Additional duties on legal representatives to: take all reasonable steps to assist and cause the party to comply with its disclosure duties liaise and cooperate with the legal representatives of the other parties to promote efficient conduct of disclosure Undertake a review to satisfy themselves that any claim to privilege is properly made and its basis sufficiently explained

Sanctions The Court has express (and general) powers to impose sanctions if a party fails to: comply with a procedural step; or discharge duties; or cooperate with other parties in completing the Disclosure Review Document Court can adjourn a hearing and make an adverse costs order Court can order that any further disclosure by a party be conditional on any matter specified

Basic Disclosure First stage of disclosure process: Service with each statement of case of key documents: on which a party has relied (expressly or otherwise) in support of the claims or defences advanced in its statement of case; and that are necessary to enable the other parties to understand the case they have to meet Light touch approach to Basic Disclosure with exceptions including: Parties can agree to dispense with Basic Disclosure No obligation where it would run to more than 500 pages Not required where you are serving out of the jurisdiction No obligation to serve adverse documents (at this stage)

Extended Disclosure If a party seeks disclosure beyond Basic Disclosure it must request Extended Disclosure This is done by completing the Disclosure Review Document (DRD): no application notice is required Extended Disclosure will only be ordered where it is appropriate in order fairly to resolve an Issue for Disclosure Extended Disclosure must be reasonable and proportionate by reference to various factors, mostly derived from the overriding objective

Importance of identifying the Issues for Disclosure Each party must, when serving a statement of case, say in a letter whether or not it is likely to seek Extended Disclosure Where any party has indicated it is likely to request Extended Disclosure, the Claimant must prepare a draft list of Issues for Disclosure and serve on other parties within 21 days of the deadline for a Reply Form 1A of the DRD is used for this list Issues for Disclosure are the key issues in dispute which the parties consider will need to be determined by the court by reference to contemporaneous documents The parties must discuss and seek to agree the List of Issues for Disclosure within 14 days of the draft being served Form 1A requires each party to propose a model of disclosure for each Issue for Disclosure

New menu of “Disclosure Models” Existing menu of disclosure options to be replaced by five Disclosure Models Model A: No order for Disclosure Model B: Limited Disclosure (documents that are relied on plus any adverse documents of which the party is aware without the need for a further search) Model C: Request-led, search-based disclosure Model D: Search based disclosure (similar to standard disclosure), but with some options around disclosure of “narrative” documents Model E: Wider search based disclosure (train of enquiry etc.) No presumption you are entitled to Models D and E Each model proposed must be reasonable and proportionate (new criteria)

Duty to disclose adverse documents A party cannot sit on an adverse document simply because it has not been asked or ordered to disclose it Where Extended Disclosure is ordered, the time for production of adverse documents is with that disclosure Where Model A Extended Disclosure is ordered (No further disclosure) the time for production of adverse documents is within 30 days after the CMC: but there is a continuing duty Where Model A or B Extended Disclosure is ordered, no search is required for adverse documents, but any documents of which the party is aware must be disclosed

Purpose of the Disclosure Review Document Structure and guide discussions around the scope of disclosure (which are now mandatory) Build upon and improve the existing EDQ and encourage discussions around the efficient use of technology Provide a standard form to list the Issues for Disclosure and any Specific Disclosure Requests which may be sought under Model C Provide a template for recording the outcome of those discussions (in place of the Disclosure Report) Ensure that areas of dispute or difficulty are recorded Remind parties and advisers of their duties when proposing particular orders (via the certificates that have to be signed)

Completion of the DRD Pre-CMC: Section 1A: identify Issues for Disclosure following close of pleadings Section 1B: requests for disclosure using Disclosure Model C Section 2: where any party seeks Disclosure Model C, D or E, document landscape to be described Parties meet to discuss the points identified in the DRD Issues for Disclosure Which Disclosure Models should be used Discuss and agree scope of any searches Use of technology (note default use of TAR in Section 2 of DRD) Identify areas of particular difficulty or challenge Costs of proposals must be estimated Disclosure Guidance Hearings

Encouraging robust case management by the Courts Disclosure Guidance Hearings The Court may give directions on the following to reduce the burden and cost of disclosure: Limiting searches (custodians, dates, locations etc) Requiring the use of data sampling, de-duplication techniques Directing the use of technology assisted review tools Orders for phased disclosure Cost shifting orders Orders for non-compliance or breach Further or revised disclosure certificate, additional searches, improved List, specific disclosure, witness statement to explain non-compliance Sanctions for non-compliance

Post CMC Section 3 of DRD: Guidance on appropriate methodology List of what should be agreed between the parties Parties should keep record of their methodology Form of disclosure certificate to be finalised List of documents still required Production of electronic documents by providing in native format preserving metadata Concept of “inspection” generally dispensed with

Other key features of the proposals Document preservation notices – obligations on party and its representatives Deferral of the Form H Cost Budgets until after the CMC Restriction on use of privileged documents where reason to suspect inadvertently produced Pre-action and non-party disclosure rules preserved unchanged

Next steps and timing Period of review: further explanation, familiarisation and feedback from and to DWG (to 28 February 2018) Responses to be emailed to: dwg@judiciary.uk Seek approval from the Civil Procedure Rules Committee (target date April 2018) Commencement of a 2 year (mandatory) pilot across the Business and Property Courts as soon as possible after any CPRC approval London, Bristol, Cardiff, Birmingham, Manchester, Leeds, Newcastle and Liverpool Replacement of Part 31 if pilot successful

Questions?