The judiciary-led Disclosure Review Working Group published a summary last week of the results of its survey of court users earlier this year. As stated in its May update, the majority of respondents did not consider the reforms, introduced in the Business and Property Courts (B&PCs) in 2022, a success.
However, the summary sheds light on what works, what doesn’t and what improvements can be made.
Overall, there was ‘substantial dissatisfaction’ with PD 57AD ‘as presently operating’. The ‘dominant concerns were cost, complexity and proportionality’, with repeated concerns raised about ‘increased costs, front-loading, disputes about the disclosure review document, disagreement over issues and models for disclosure, satellite disputes, and the difficulty of achieving genuine cooperation in an adversarial process’. Some respondents thought the regime poorly suited to ‘smaller, less complex, property or litigant-in-person cases’.
Fewer than one in five respondents thought the regime a success. Barristers were the most negative about it. Some 40% supported a return to CPR Part 31, while 48% disagreed.
While costs comparisons between the old and new regimes are difficult to make, 67% of respondents said costs for disclosure had increased. More than one third of these said the increase was more than 25%. Reasons given included preparation of the disclosure review document, and greater involvement of counsel and senior lawyers in disclosure work.
Respondents liked PD 57AD’s support for early understanding of the case and that it allows light-touch disclosure where appropriate. One third of respondents thought technology-assisted review (TAR) and/or use of artificial intelligence (AI) should be mandatory above a certain threshold.
The working group concluded the ‘most obvious reform themes are simplification of the disclosure review document, reduction or reframing of the disclosure models, clarification of Model C and narrative documents, improvement of the list of issues process, clearer cooperation mechanisms, clarification of certificate and preservation obligations, possible use of specialist disclosure support, and clearer guidance on TAR and AI’.
