Frustration with disclosure pilot shows no sign of easing



Continued discontent with the disclosure pilot scheme in the business and property courts has been outlined by a new poll of lawyers suggesting most are still unhappy with it.

A survey of 250 senior legal professionals at UK law firms found 97% expressed frustration with aspects of the pilot scheme and 70% deemed it unfit for purpose at present.

Almost three-quarters (74%) of respondents said the scheme had actually exacerbated the adversarial environment in the litigation process.

The survey, commissioned by global professional services firm Alvarez & Marsal (A&M), seems to confirm that the legal profession is largely still unhappy with the disclosure pilot, which is set to finish at the end of this year and is likely to signal a permanent change in the rules. The pilot has already been amended and simplified since it began in 2019 after reports that the profession’s response in some quarters had been ‘emphatically’ negative. Lawyers branded aspects of the pilot ‘monstrously difficult’ and ‘hopelessly laborious’, with costs ‘triplicated’.

The scheme is intended to make disclosure more proportionate and tailored to each case and requires parties to agree issues for disclosure.

But while there has been an increase in the use of technology experts in the disclosure process, there are few signs that conflicts are being resolved, with most respondents to the survey saying they agree with the opposing side on which disclosure model to use less than half the time.

Phil Beckett, managing director and head of disputes and investigations at A&M in Europe and the Middle East, said it was heartening to see greater reliance on technology and expert advice, but lawyers are still reporting significant flaws in the process.

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‘There is a danger that rather than making it easier for parties to agree on the right way to deal with relevant documentation, the scheme may instead be placing further barriers between parties in the crucial early stages of disputes,’ Beckett said.

Ben Sigler, partner at international firm Stephenson Harwood, told the A&M report that the pilot scheme had significantly driven up the costs of disclosure, and in any case was unnecessary as the existing rules provided scope for the court to actively manage disclosure issues.

 



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