September 27, 2021

70% of legal professionals deem Disclosure Pilot Scheme “not fit for purpose”

Leading global professional services firm Alvarez & Marsal (A&M) has today released new research from its Disputes & Investigations practice around the effectiveness of the Disclosure Pilot Scheme (DPS). The survey of 250 senior legal professionals* revealed that 97% of senior lawyers are frustrated with aspects of the pilot as it stands – with 70% deeming the scheme unfit for purpose.

The survey, and associated report, highlights several key insights from senior lawyers around the effectiveness of the scheme currently being trialled in the U.K. Business and Property courts. With 74% of respondents judging that the DPS has exacerbated the adversarial environment in the litigation process, it seems that the pilot has some way to go for the scheme to win the fulsome support of the legal profession.

The survey also highlighted the importance of technology in the disclosure process, with a comfortable majority of respondents (85%) stating that access to technology is a determining factor when parties decide on their disclosure model. The report demonstrates that the objectivity that technology brings to complex cases should be taken into account as the pilot continues to evolve, with 77% of respondents believing that more effective use of technology could contribute to transforming the scheme for the better.

Richard East, Senior Partner at Quinn Emanuel Urquhart & Sullivan UK LLP, comments: “As the role of technology has become more central to disclosure exercises, law firms are acknowledging that experts are needed early in the process to help accelerate work and serve clients better. It is important that experts are fully integrated into the team as trusted advisors, and are not just used to address ad hoc technical challenges, but to add value right the way through the disclosure process.”

Other survey insights:

  • 68% of respondents use technology experts from the start of disclosure process;
  • Most respondents find themselves agreeing with the opposing side on which model to use less than half the time. Whilst a significant proportion of respondents (14%) state that parties are often two models or more apart at the start of a disclosure process.**
  • 68% of respondents changed their approach to engage with disclosure models that were not previously available pre-pilot;

Phil Beckett, Managing Director and Head of Disputes and Investigations at A&M in Europe and The Middle East, explained: “The pilot scheme has unquestionably got people thinking about eDisclosure more thoroughly and earlier in the process; and created more options for lawyers and other court users when it comes to disclosure processes and it is also heartening to see that technology and expert advice is part and parcel of completing disclosure requests quickly and efficiently. All of these points are great to see, but all the same, the lawyers we surveyed highlighted some significant flaws in the pilot scheme as things stand. 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. Whilst we are aware more changes came into force in April 2021 to hopefully combat this, we will be interested to see how they play out.”

Ben Sigler, Partner at Stephenson Harwoodcomments: “Unfortunately, in my experience, the DPS has significantly driven up the costs of disclosure, thereby exacerbating the main problem which it purported to address. What is most regrettable is that, in my view, none of the changes which it introduced were even necessary, as: (1) CPR 31 already provided scope for the Court to actively manage the scope of disclosure (rather than simply to order standard disclosure); and (2) technology assisted review already provided an effective solution to delivering disclosure at proportionate cost in cases involving substantial volumes of potentially disclosable data.”

Hugo Plowman, Partner at Mishcon de Reya LLP, on the other hand takes a more balanced view: “It seems to be reasonably certain that the DPS is here to stay despite the known teething problems that practitioners have experienced to date. There is a concern about front-loading of costs and creating new room for argument about the form and content of the DRD. Recently introduced changes are likely to assist in resolving some of this, but more is needed.”

Beckett concludes: “With months to go before the DPS currently expires, and with yet more changes just recently come into play (April 2021) we truly hope that with further modifications and simplifications of the scheme’s structure and more robust guidance on best practices and enforcement, the DPS will benefit lawyers and their clients long term.