It is only a few days since I last wrote about the Disclosure Pilot (see Collecting together some articles on updating the Disclosure Pilot). That article, as its title implies, had the primary aim of pointing to resources written by others, and this one is no different – the proposed revisions are provoking a fair amount of comment from those actually involved in the amendments, and my best service to you is to make sure you see it rather than adding to the pile.
First comes another article from the indefatigable Johnny Shearman at Signature Litigation. Called Disclosure pilot scheme: revision, simplification and extension, it picks out some of the areas under discussion. I will point to three of them without adding much comment of my own:
Disclosure Guidance Hearings have been underused, not least because parties have been unsure when they are appropriate. That word “Hearing” is perhaps not helpful, implying something formal and argumentative where the key word is “Guidance”. There are no plans to change the name, but it should become clearer when and how they are to be used. It is good to see that we are not necessarily stuck with the 30-minute time limit, though that presumably remains the aspiration.
Simplifying the Disclosure Review Document. This, as Johnny Shearman puts it, “has become a hotbed of contention”. That won’t be everyone’s experience, but there have been enough problems to warrant a review. Note the reference to “parties being difficult about agreeing the DRD” which often reflects differing perceptions – I am “standing up for my client’s interests”, you “have strong views” and they “are very tiresome to deal with”. Judges are reminded that they should “should call out parties that fail properly to co-operate, as is required under the pilot”.
The use of technology was covered in the practice direction, and generally reasonably well. Judges seem increasingly to expect it. The article sensibly suggests that “Technology experts, given the chance, can help to steer the process and, arguably, contribute to saving costs in the long term through early adoption and collaboration.”
The second article is by Rachel Rothwell in the Law Society Gazette. Many will welcome the suggestion given by its title, that Lower value claims may escape disclosure ‘sledgehammer’
The article reports on an interview with Ed Crosse of the Disclosure Working Group, whose message is summarised as
[in some cases] it could be ‘disproportionate’ to require the ‘whole mechanics’ of drafting a list of issues for disclosure, producing a Disclosure Review Document (DRD) and matching disclosure models to issues. He added that the disclosure pilot should not form a barrier to access to justice.
There is also the welcome suggestion that, in multi-party actions at least, docketed judges might “take the reins and assist parties with disclosure at an early stage, disapplying the pilot where appropriate.”
The main message from this article is the invitation to practitioners to get involved in the discussions.