English courts tackle the digital age with Disclosure Pilot

On 1st January 2019, English business courts commenced with testing a new way of handling the discovery process through a disclosure pilot. Consequently, notable changes on how lawyers prepare for a case have been seen in the last year.

Paige Long at Law360 investigated how its roll-out has been received by commercial litigators, and approached London Partner and commercial disputes specialist John McElroy. Speaking about the impacts that the disclosure pilot have had on his role, John noted:

"The biggest change is that clients are expected to put a lot more effort into the gathering of evidence, far earlier than under the old system. The administration required means that people are probably taking a bit longer to issue proceedings as a result. As a client and as a solicitor, the last thing you want is to be penalized for costs for not complying with a rule, and so there has been a lot of focus on doing things the right way."

Sharing his views alongside three lawyers also adopting the pilot, John proceeded to state:

"From my initial experience over the last 12 months, the models have been a real success in terms of getting the parties to engage with each other. It's been productive both when I've been on the claimant and defense sides. When we were back in the territory of traditional standard disclosure, the number of documents were becoming out of control because of the electronic era we now live in with all of our emails and multiple versions of every document. The new models are having a positive impact on encouraging the parties to engage so that disclosure is more reasonable and proportionate.

Inevitably, Model C [targeted requests for search-based disclosure] and Model D [similar to but slightly narrower than the traditional standard disclosure] have so far been the most popular. I haven't had any cases so far where we've used Model E [a broad search]. But I've had a case where one of the issues was B [limited disclosure].

That's the beauty of it. People are learning to use different approaches to different issues. Rather than applying one-size-fits-all, people can say: I'm going to use C for this issue, D for this issue and B for this one. And parties are actually understanding how that works.

It will take people quite some time for it to work the way it's supposed to, but the ability to ask for a disclosure guidance hearing is a real game changer for civil disclosure. Sooner rather than later we're going to start seeing more encouragement from the judiciary to use them, and more parties engaging in them."

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