Disclosure pilot ramping up costs, lawyers complain

The disclosure pilot scheme has increased costs and complicated the budgeting of cases in the Business and Property Courts, litigators have complained.

The Civil Procedure Rule Committee has nonetheless been asked to extend the pilot to the end of 2021 and changes to it are in train following the latest interim report on its progress from Professor Rachael Mulheron, the academic tasked with monitoring the pilot.

Her report was based on responses to a questionnaire circulated in October last year, nine months after its launch. Although she completed the report in February and it was discussed by the disclosure working group in June, it has only recently been published.

Large majorities told Professor Mulheron the pilot had increased the costs of disclosure (85%) as well as the time spent, had failed to achieve a culture change and increased the burden on the courts. Only 4% of thought it had reduced costs.

Professor Mulheron admitted that the responses were “frequently quite negative, and sometimes, emphatically, even vociferously, so”. One solicitor said there had been a culture change – but rather than leading to a greater degree of “co-operation, proportionality and reasonableness” as intended, it meant “parties have more opportunity to argue with each other”.

Another described the pilot as “a further barrier to justice”, which would deter those with claims of around £250,000 from issuing proceedings because of the front-loading of costs.

Most respondents were critical of the request for a costs estimate that is in the disclosure review document (DRD) introduced by the pilot, saying it was too early in the litigation. This led to “vague”, ballpark figures, under-estimates or multiple estimates.

One said: “The pilot makes the costs budgeting process extremely difficult, as you have to include a contingency for alternative models of disclosure being proposed, so the budget may have to be dealt with at a later hearing (at significant further costs to the parties), as the parties do not know what model the court might order at the CCMC, and have not included provision within their budget for this.”

Another said they addressed this by preparing two costs estimates depending on which party’s version of disclosure was adopted.

There were also worries that the question duplicated costs-budgeting in multi-track cases worth less than £10m, while some recounted that the estimate provided was disregarded with the court.

Respondents only reported three cases where the court made adverse costs orders regarding disclosure. “Some respondents opined that, even where adverse costs may have been appropriate (due to the opposing party’s conduct), there was no interest by the judge in investigating the conduct of the parties in dealing with the matter.”

Professor Mulheron, who is based at Queen Mary University, said in her preface to the report that the nature of the responses could be explained by the timing of the questionnaire, early in the life of the pilot, when its impact on overall costs was “too early to tell”.

The changes in the revised version of PD 51U for consideration by the rule committee include modifying the requirements of and exemptions to initial disclosure, clarifying issues relating to the use of disclosure guidance hearings, and confining the obligation to complete the DRD to only those cases where the parties agree that search-based extended disclosure models are required.

The rule committee will hear proposals to simplify the DRD as well, including further guidance on when and how it should be completed, and confirmation that it may be modified and/or shortened by the parties for more or less complex cases.

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Costs News
Published date
15 Oct 2020

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