Substantial dissatisfaction prompts review of disclosure regime

Publishing the results of a survey of legal sector stakeholders, the Disclosure Review Working Group (DRWG) confirmed it is developing proposals to simplify Practice Direction 57AD (PD57AD), the disclosure framework that applies to most cases in the business and property courts.

The group said it wants to reduce "complexity, front-loading and cost" and ensure the regime better accommodates technological developments. It ruled out a simple return to the previous disclosure rules under part 31 of the Civil Procedure Rules, signalling instead that a revised version of the current framework is likely to emerge.

For many litigators, the announcement represents a significant acknowledgment that a regime introduced to make disclosure more proportionate has itself become a source of dissatisfaction.

"On one hand, some welcomed the more tailored, proportionate approach to disclosure which PD57AD encouraged," said Emilie Jones, commercial litigation expert at Pinsent Masons.

"However, concerns have also been raised about the costs of compliance, with satellite negotiations and disputes over points such as the appropriate level of granularity of issues for disclosure, as well as the extensive work required on disclosure review documents (DRD), often leading to an increase in costs at the front end of a claim. It is perhaps unsurprising, therefore, that the survey results now published indicate 'substantial dissatisfaction' with the current operation of the practice direction”, she said.

Of the 215 respondents, 64% disagreed that the reforms introduced through PD57AD had been successful, while only 13% supported retaining the regime in its current form. A total of 67% said the proportion of overall litigation costs attributable to disclosure had increased under the regime, with much of that increase linked to procedural requirements created by the rules themselves.

The survey also revealed concern about the complexity of the various models of extended disclosure, with some respondents questioning whether the current model structure delivers proportionate benefits relative to the effort required. There were similarly mixed views regarding ‘lists of issues for disclosure’ and ‘disclosure guidance’ hearings, both of which were introduced to improve efficiency but are seen by some practitioners as generating further disputes or cost.

Despite those criticisms, stakeholders did not overall advocate abandoning the reforms altogether. A majority favoured retaining PD57AD in some form but with modifications, suggesting broad support for its underlying objectives even if many consider its operation in practice to be flawed.

The review group's early indications suggest that reform efforts will focus on simplification and clarification rather than replacement. Potential changes include streamlining the DRD, reducing and clarifying the disclosure models, improving the issues for disclosure process, introducing clearer cooperation mechanisms and providing greater clarity around disclosure certificates and document preservation obligations.

The debate is also increasingly shaped by developments in technology.

One of the survey's clearest messages was that the existing framework does not adequately reflect the growing role of technology-assisted review (TAR) and AI in disclosure exercises. More than half of respondents felt the current rules do not do enough to encourage the use of TAR, while 75% supported the creation of a dedicated AI and TAR best practice guide.

Naina Lawrence, head of e-data at Pinsent Masons, said this is an area where reform presents a significant opportunity.

"It is important that any reform reflects the now central role of advanced analytics and generative AI in disclosure,” Lawrence said. “The current framework, including the DRD, predates significant technological developments and so may not fully capture modern workflows such as continuous active learning, AI-assisted review, and thematic analysis where document populations are analysed to identify patterns and issues, rather than relying solely on keywords and linear review.”

Lawrence said technology is already delivering substantial efficiencies in large-scale disclosure exercises and argued that the revised regime should be built around principles of transparency, defensibility and proportionality rather than prescriptive requirements that risk becoming outdated as technology continues to evolve.

The DRWG appears receptive to those views. Among the reform themes it has identified are adapting PD57AD to developments in TAR and AI, clarifying whether AI falls within existing TAR provisions, addressing issues around prompts and validation, increasing transparency requirements and developing guidance capable of being incorporated into the practice direction itself.

"The aims of Practice Direction 57AD were worthy ones and the practice direction includes a number of useful concepts and principles," Jones said.

"However, it is welcome that the judiciary has recognised that the rules have not wholly met their objectives and has been proactive in seeking and acting on feedback from court users," she said.