Litigators frustrated with disclosure pilot

The DPS, which began in January 2019 following research by a Disclosure Working Group (DWG) and runs until the end of 2021, gives parties a menu of models for disclosure as lawyers grapple with ever increasing quantities of digital data.

In the survey, ‘Disclosure pilot scheme, the inside view’, commissioned by global law firm Alvarez & Marsal, 97% of respondents expressed frustration with aspects of the pilot, while 70% said the scheme was unfit for purpose and 74% thought it exacerbated the adversarial environment of litigation.

Phil Beckett, managing director at Alvarez & Marsal, said there was a danger the scheme may ‘be placing further barriers between parties in the crucial early stages of disputes’.

Ben Sigler, partner at Stephenson Harwood, said: ‘In my experience, the DPS has significantly driven up the costs of disclosure.’

Some 85% of the lawyers said technology was a determining factor when choosing their disclosure model, and 77% called for more effective use of technology.

Most respondents disagreed with the opposing party on which model to use more than half the time. 68% of respondents are engaging with disclosure models that were not available pre-pilot.

However, DWG member Ed Crosse, Simmons & Simmons partner, said the DWG is considering rule changes in response to points raised as part of its ongoing review, and has also received some positive feedback. The pilot is likely to be extended. 

Crosse agreed with the findings on the importance of technology. He said the DWG is keen to avoid the extra procedures driving up costs in lower value cases, and is considering advising a light approach to the rules in such cases.

David Greene, senior partner at Edwin Coe and NLJ consultant editor, said: ‘As I commented to the working party that developed the pilot; my long experience tells me that the changes to civil procedure that reduce the costs of litigation are few and far between. True to form, the survey suggests that the pilot has increased the costs of litigation. This is unsurprising since the process raises tactical issues and choices and parties will be seeking to take advantage of them. But, and it’s a big but, something needed to be done to address the avalanche of data that has fallen upon modern litigation and the pilot, whilst far from perfect has sought to address the issue.’