Less Complex Claims; Less Complex Disclosure

The announcement that there will be a new, separate and simplified disclosure regime within the pilot for parties who are involved in “Less Complex Claims” (claims worth less than £500,000 or by their nature less complex) is very welcome for clients who face pressure with budgets, as it will save costs if used appropriately Under the simplified disclosure regime:

• claims will be subject to a simple, high level Disclosure Review Document which requires far less detail than before;
• the range of disclosure options offered will be limited to only three disclosure models: no disclosure (Model A), reliance disclosure (Model B) or standard disclosure (Model D); and
• lawyers will only be able to list a maximum of five issues for disclosure, all of which must be kept brief.

These changes are significant for those bringing or defending smaller value clams. Previously the pilot was thought to be too complicated for lower value claims and often increased the cost of disclosure when compared with CPR Part 31. Introducing a new, simplified regime means that parties involved in claims which by virtue of their nature, value and the likely volume of disclosure are “less complex”, will now be able to save time and money in navigating the previously protracted pilot procedure.

Bespoke Approach for Multi-Party Cases

 The proposed bespoke approach for multi-party claims is also welcome. There are often deadlocks when multiple parties need to agree the List of Issues for Disclosure. Discussions to resolve these can often take months of lawyer and client time.

Although multi-party cases will still operate within the spirit of the regime, there is now an express recognition that disclosure in such claims will need a bespoke approach from the court.

To facilitate this more tailored approach, the proposed amendments state that the court may choose to vary the timetable and procedure to suit the needs of the individual case. It is anticipated that this could involve an early petition to the court to resolve these issues.

Modifications to the provisions in respect of the list of issues for disclosure and models of extended disclosure

The current DPS envisages a two-step process in respect of parties discussing and seeking to agree the draft List of Issues for Disclosure and, should Extended Disclosure be sought, the Models which ought to apply. Parties are encouraged to consider the latter only once the former has been discussed and agreement sought. This has tended to lead to two phases of protracted negotiations between the parties, especially when Model C disclosure (request-led, search based disclosure) is selected.

The proposed amendments seek to streamline the process by combining these two steps. The claimant will be encouraged to identify the proposed Model of Extended Disclosure (including, if Model C Disclosure is sought, how the request is to be defined) at the same time as serving the draft List of Issues for Disclosure. The other parties will then have a chance to revert, within 21 days, on the full suite of the claimant’s proposals.

There is enthusiasm around this change but it remains to be seen how this will play out in practice. Whilst there is only likely to be one “phase” of negotiations between the parties, it appears unlikely that those negotiations will be any less protracted and hard fought than those which regularly take place under the current scheme. The conflated process may also introduce certain inefficiencies. By way of example, time and costs may be wasted negotiating which Models ought to apply to certain Issues.

More significant are the proposed changes to the provisions in respect of Model C Disclosure. With the overarching aim of “discouraging excess when Model C is used”, parties are now explicitly warned that such requests “should not be used in a tactical or oppressive way” and should be “limited in number, focused in scope and concise”. Parties are advised that they should avoid using “[b]road and wide-ranging formulations such as “any or all documents relating to…”” It remains to be seen whether this would facilitate a sea-change in the way in which parties model search based requests, but companies who are faced with a number of broad based, wide ranging formulations should be able to resist them.

This focus on concision and brevity recurs throughout the amendments: parties are reminded that the List of Issues should be “as short and concise as possible” and should “only include the key issues in dispute”; likewise, the importance of “moderation” in the number of Models used and the way in which they are applied is heavily emphasised.

Conclusion

We are supportive of these amendments - they are a step in the right direction to make disclosure less costly and time consuming for clients. The shift away from a “one size fits all” approach is in particular to be welcomed.

Whether these changes introduce enhanced efficiencies in practice, though, remains to be seen and we will be monitoring early cases deciding on these measures to see how they are worked through and applied by judges and masters.

Authored by Akima Paul Lambert, Alex Plant, Georgia Davies.