Get ready for a new UK disclosure menu

The Civil Procedure Rule Committee last month approved the new rules on disclosure which were proposed by a group of court users and judges including Mr Justice Birss (an IP judge). The working group was chaired by former Court of Appeal judge Dame Elizabeth Gloster. The new rules will apply to existing and new proceedings in the Business and Property Courts (BPC) of England and Wales.  IP cases will be affected, though there are exemptions, because the Intellectual Property Enterprise Court (IPEC) and the Patents Court were brought under the BPC umbrella in 2017. Subject to approval by the relevant government minister, a mandatory pilot scheme for the new rules will run for two years, starting from January 1 2019.

In summary, the principles and duties concerning disclosure are now set out in the new Practice Direction. Standard disclosure will be replaced by the initial disclosure and extended disclosure regime. Parties seeking extended disclosure will have to convince the court that such a request is ‘appropriate, reasonable and proportionate’, and there are options (Disclosure Models A - E) that the court can order. Model D order is the new standard disclosure, but it is not meant to be the norm. There is also a new Disclosure Review Document, which will cover the Electronic Disclosure Questionnaire, to assist parties agree on disclosure. Sanctions are available to the court for non-compliance.

According to the draft Practice Direction, unless a court orders otherwise, some cases (for example, those within the IPEC and the Shorter and Flexible Trials Schemes) are exempt. However, the new rules slightly modify the current disclosure rules in the Patents Court (see paragraphs 1.3 to 1.7). All the documents, including the explanatory note, concerning this new scheme can be found here.

The rationale for reform is stated in the judiciary’s press release: “[S]tandard disclosure often produces large amounts of wholly irrelevant documents, leading to a considerable waste of time and costs. [I]nadequate judicial resources had led, on occasion, to judges not being able to deal effectively with disclosure issues at a case management conference, so that, in the absence of agreement between the parties, standard disclosure often became the default option. [W]hile orders for standard disclosure may be appropriate (and strongly desirable) for factually complex cases, there are many other cases which can be fairly and efficiently determined on the basis of more focused and limited disclosure.”

See the firms and individuals in the working group behind this reform here.

This news comes as the voluntary shorter trial pilot scheme in the BPC is about to end (September 30 2018). The shorter trial scheme was designed to ensure robust judicial case management and reduce the duration and costs of litigation. As Mr Justice Carr observed in his judgment in L’Oreal v RN Ventures, overall, it seems the scheme can work in IP cases. It remains to be seen whether the shorter trial scheme will be permanently incorporated into the business court rules and if the new disclosure regime is used in IP cases. It will be interesting to hear how judges and litigants handle it.

Working group member Ed Crosse, partner at Simmons & Simmons, said in a commentary: “The new pilot scheme is much needed and will be a success provided clients, the legal profession and judges truly embrace the new rules. Change is never easy and, at least initially, it will require an investment of time and focus by all for the rules to bed down. No matter how they are drafted, rules can only achieve so much. The success or otherwise of this scheme in my view turns on whether we seize this opportunity to take a new, modern, efficient and robust approach to disclosure. Other jurisdictions are following this initiative with interest and no doubt will seek to emulate it; but that takes time. These new rules should help ensure that our courts continue to be regarded as innovative, and highly attractive for domestic and overseas clients with disputes to resolve, especially in a post-Brexit era.”