Updates and extension to the Disclosure Pilot

The second extension of the Pilot until 31 December 2022 is now due to come into effect on 1 October 2021.  In announcing the extension the Disclosure Working Group of the High Court also provided advance notice (at https://www.judiciary.uk/announcements/update-on-the-operation-of-the-disclosure-pilot-scheme-disclosure-pilot-july-2021/) of further changes to the Pilot. Subject to final approval by the Civil Procedure Rules Committee and the Minister, the revisions to Practice Direction 51U are expected to come into effect at some point during Autumn 2021. 

The then Chancellor of the High Court, Sir Geoffrey Vos, provided an explanation of the Pilot’s purpose, and clarification as to how some aspects of the Pilot were intended to work, in McParland and Partners Ltd v Whitehead [2020] EWHC 298 (Ch):

“…the provisions of the Disclosure Pilot are intended to apply across a wide range of cases stretching from the highest value business cases to the lowest value ones, and from the most complex, lengthy and document intensive to the least complex cases with few relevant documents. PD51U provides a menu of options which allows for a range of disclosure approaches designed for the particular dispute. It is critical, however, that in every case, the type of Extended Disclosure is fair, proportionate and reasonable. The Disclosure Pilot should not become a disproportionately costly exercise. This latter requirement means that the parties have to think cooperatively and constructively about their dispute and what documents will require to be produced for it to be fairly resolved. In smaller value disputes particularly, but also in higher value ones, unduly granular and complex solutions should be avoided. This case demonstrates that point specifically.”

McParland has been the touchstone case for resolution of issues which have arisen regarding disclosure under the Pilot.  A recent judgment is Curtiss v Zurich [2021] EWHC 1999 (TCC) in which HHJ Keyser QC, applying McParland, provided a helpful review of the principles to be followed when considering how the list of Issues for Disclosure should be formulated (with some useful examples).

The proposed amendments to the Pilot align with the views expressed in McParland – that it is intended to be suitable for cases from the highest to lowest value – and also address some of the problems around the list of Issues for Disclosure that were the subject of Curtiss.  In brief outline the changes are as follows:

• The creation of a new, separate regime for ‘Less Complex Claims’, defined as “a claim which by virtue of its nature, value, complexity and the likely volume of Extended Disclosure may not benefit from the full procedure set out in the main body of PD51U.” This regime will generally apply for all claims less than £500,000 and is implemented by the agreement of the parties or order of the court. Under the simplified procedure for Less Complex Claims, only disclosure Models A, B or D are available and the list of Issues for Disclosure (which will only normally be prepared for Model D) “must be brief and be drafted at a high level of abstraction. Only rarely should the number of Issues for Disclosure exceed five”.


• There is an express recognition that the PD 51U regime may require adaption for multi-party cases to provide a bespoke timetable and procedure, and to recognise that it may not be appropriate (or necessary) for all parties to receive all disclosed documents. There is a focus on discussion and agreement between the parties and early application to the court in such cases.


• Changes to the provisions relating to the list of Issues for Disclosure and to Models C and D have been made. The list of Issues for Disclosure is expressly required to be “as short and concise as possible” and should only include the key issues in dispute. The procedure for developing the list is revised to make it simpler and to encourage cooperation and agreement. There also is a recognition that exclusion of narrative documents can sometimes be more costly than their inclusion, and the provisions are modified accordingly.  The use of Model C for excessive requests is actively discouraged: “Model C should not be used in a tactical or oppressive way”.


• Finally, the provisions of paragraph 11 of PD 51U have been redrafted to remove the focus on a hearing and clarify that guidance can be provided by review of the papers, or by the court resolving differences in the traditional way by a party bringing forward an issue for determination by way of an application notice.

With these updates and the extension of the Pilot, a sense of permanence is beginning to pervade this new regime for disclosure. Whilst such changes always take time to bed in, there are some themes which seem to emerge from both the judicial guidance and the tenor of the changes to the Pilot:

• There is a strong focus on cooperation between the parties. A party who uses (or misuses) disclosure under the Pilot in a tactical manner is at risk of judicial disapproval.


• The procedure is always to be judged against what is proportionate for the fair resolution of the issues in the case – the changes for both low value and multi-party cases reflect this.


• The parties should be realistic and pragmatic and consider what types and sources of documents are likely to exist, and will actually go to relevant issues in dispute in the case.


• There is an emphasis on concision in the drafting of the Issues for Disclosure and for disclosure requests (particularly in Model C). Curtiss provides examples of the type of issues that would be inappropriate for inclusion as Issues for Disclosure.


• Parties should focus on the key disputed issues, and the documentary evidence which goes to those issues – peripheral issues or ‘fishing expeditions’ are inappropriate matters for the costly exercise of disclosure.