This Practice Direction is made under rule 51.2 and provides a pilot scheme for disclosure in the Business and Property Courts. Section I provides a new scheme for disclosure.

The Commencement Date is 1 January 2019. The pilot applies from the Commencement Date for three years to existing and new proceedings in the Business and Property Courts of England and Wales and the Business and Property Courts in Birmingham, Bristol, Cardiff, Leeds, Liverpool, Manchester and Newcastle. For the avoidance of doubt, it does not apply in the County Court although this may be reviewed in the course of the pilot.

The pilot shall not disturb an order for disclosure made before the Commencement Date or before the transfer of proceedings into a Business and Property Court, unless that order is varied or set aside. If proceedings are transferred out of one of the Business and Property Courts into a court that is not one of the Business and Property Courts, any order for disclosure made under the pilot will stand unless and until any other order is made by the transferee court.

The pilot shall not, unless otherwise ordered, apply to proceedings which are-

In the Patents Court, PD63 paragraphs 6.1 to 6.3 will continue to apply under the pilot with the following modification: unless the court expressly orders otherwise, no provision in this practice direction nor any disclosure order made under this pilot will take effect as requiring disclosure wider than is provided for in PD 63 paragraph 6.1.

The pilot will continue to apply after the end of the two year period to any proceedings to which it applied at that point.

For the purposes of the pilot, where the provisions of this Practice Direction conflict with other provisions of the rules or other Practice Directions, this Practice Direction shall take precedence.

Terms in Section I of this Practice Direction shall have the meaning given to them in the schedule of definitions at Appendix 1.

Save for those provisions of CPR Part 31 that are set out in Section II, and the related provisions of Practice Directions 31A and 31B, CPR Part 31 and Practice Directions 31A and 31B shall not apply to any proceedings falling within the pilot.

Save that references in Section II to an Electronic Documents Questionnaire should be treated as references to the Disclosure Review Document, nothing in this Practice Direction is intended to change the application or working of those provisions of CPR Part 31 that are set out in Section II and the related provisions of Practice Directions 31A and 31B, and CPR Part 31 as a whole should still be used to interpret those provisions.

Disclosure is important in achieving the fair resolution of civil proceedings. It involves identifying and making available documents that are relevant to the issues in the proceedings.

For the purpose of disclosure, the term "document" includes any record of any description containing information. The term is further defined below.

The court expects the parties (and their representatives) to cooperate with each other and to assist the court so that the scope of disclosure, if any, that is required in proceedings can be agreed or determined by the court in the most efficient way possible.

The court will be concerned to ensure that disclosure is directed to the issues in the proceedings and that the scope of disclosure is not wider than is reasonable and proportionate (as defined in paragraph 6.4) in order fairly to resolve those issues, and specifically the Issues for Disclosure (as defined in Appendix 1).

A "document" may take any form including but not limited to paper or electronic; it may be held by computer or on portable devices such as memory sticks or mobile phones or within databases; it includes e-mail and other electronic communications such as text messages, webmail, social media and voicemail, audio or visual recordings.

In addition to information that is readily accessible from computer systems and other electronic devices and media, the term "document" extends to information that is stored on servers and back-up systems and electronic information that has been 'deleted'. It also extends to metadata, and other embedded data which is not typically visible on screen or a print out.

Disclosure extends to "adverse" documents. A document is "adverse" if it or any information it contains contradicts or materially damages the disclosing party's contention or version of events on an issue in dispute, or supports the contention or version of events of an opposing party on an issue in dispute.

"Known adverse documents" are documents (other than privileged documents) that a party is actually aware (without undertaking any further search for documents than it has already undertaken or caused to be undertaken) both (a) are or were previously within its control and (b) are adverse.

For this purpose a company or organisation is "aware" if any person with accountability or responsibility within the company or organisation for the events or the circumstances which are the subject of the case, or for the conduct of the proceedings, is aware. For this purpose it is also necessary to take reasonable steps to check the position with any person who has had such accountability or responsibility but who has since left the company or organisation.

A person who knows that it is or may become a party to proceedings that have been commenced or who knows that it may become a party to proceedings that may be commenced is under the following duties ("the Disclosure Duties") to the court-

Legal representatives who have the conduct of litigation on behalf of a party to proceedings that have been commenced, or who are instructed with a view to the conduct of litigation where their client knows it may become a party to proceedings that have been or may be commenced, are under the following duties to the court-

The duties under paragraph 3.1 and 3.2 above are continuing duties that last until the conclusion of the proceedings (including any appeal) or until it is clear there will be no proceedings.

Where there is a known adverse document but it has not been located, the duty to disclose the document is met by that fact being disclosed, subject to any further order that the court may make.

Documents to be preserved in accordance with the duties under paragraph 3.1(1) and 3.2(1) above include documents which might otherwise be deleted or destroyed in accordance with a document retention policy or in the ordinary course of business. Preservation includes, in suitable cases, making copies of sources and documents and storing them.

The duty under paragraph 3.1(1) and 3.2(1) includes-

A written notification under paragraph 4.2 above should-

Legal representatives who have the conduct of litigation on behalf of a party to proceedings that have been commenced, or who are instructed with a view to the conduct of litigation where their client knows it may become a party to proceedings that have been or may be commenced, must within a reasonable period of being instructed-

Each party must confirm in writing when serving their particulars of claim or defence (as appropriate), that steps have been taken to preserve relevant documents in accordance with the duties under paragraph 3.1(1) and 3.2(1) above, and as required by paragraph 4.1 to 4.4 above.

Save as provided below, and save in the case of a Part 7 claim form without particulars of claim or a Part 8 claim form, each party must provide to all other parties at the same time as its statement of case an Initial Disclosure List of Documents that lists and is accompanied by copies of-

This form of disclosure is known as "Initial Disclosure".

Initial Disclosure is not required where-

A party giving Initial Disclosure-

Unless otherwise ordered, or agreed between the parties, copies of documents shall be provided in electronic form for the purpose of Initial Disclosure. The Initial Disclosure List of Documents should be filed but the documents must not be filed.

In proceedings where a statement of case is to be served on a defendant out of the jurisdiction Initial Disclosure is not required in respect of that defendant unless and until that defendant files an acknowledgement of service that does not contest the jurisdiction, or files a further acknowledgement of service under CPR 11(7)(b).

For the avoidance of doubt, Initial Disclosure does not require any document to be translated.

The parties may agree in writing, before or after the commencement of proceedings, to dispense with, or defer, Initial Disclosure. Each party should record its respective reasons for any agreement, so that those reasons may be available to the court, on request, at any case management conference. The court may set aside such an agreement if it considers that Initial Disclosure is likely to provide significant benefits and the costs of providing Initial Disclosure are unlikely to be disproportionate to such benefits.

The court shall disregard any prior agreement to dispense with Initial Disclosure when considering whether to order Extended Disclosure.

If a party is requested but does not agree to dispense with Initial Disclosure, the requesting party may apply to the court with notice to the other party for directions limiting or abrogating the obligation to provide Initial Disclosure if it considers compliance with the obligation will incur disproportionate cost or be unduly complex. Such an application must be made by application notice, supported by evidence where necessary, and, save in exceptional cases, will be dealt with without a hearing or at a short telephone hearing.

In an appropriate case the court may, on application, and whether or not Initial Disclosure has been given, require a party to disclose documents to another party where that is necessary to enable the other party to understand the claim or defence they have to meet or to formulate a defence or a reply.

A complaint about Initial Disclosure shall be dealt with at the first case management conference unless, exceptionally and on application, the court considers that the issue should be resolved at an earlier hearing.

A significant failure to comply with the obligation to provide Initial Disclosure may be taken into account by the court when considering whether to make an order for Extended Disclosure and the terms of such an order. It may also result in an adverse order for costs.

For the avoidance of doubt, nothing in this paragraph affects the operation of paragraph 7.3 of Practice Direction 16.

A party wishing to seek disclosure of documents in addition to, or as an alternative to, Initial Disclosure must request Extended Disclosure. No application notice is required. However, the parties will be expected to have completed the Disclosure Review Document pursuant to paragraphs 7 and following below.

The court will determine whether to order Extended Disclosure at the first case management conference or, if directed by the court, at another hearing convened for that purpose or without a hearing.

Save where otherwise ordered, Extended Disclosure involves using Disclosure Models (see paragraph 8 below) after Issues for Disclosure have been identified (see paragraph 7 below). The court will only make an order for Extended Disclosure where it is persuaded that it is appropriate to do so in order fairly to resolve one or more of the Issues for Disclosure.

In all cases, an order for Extended Disclosure must be reasonable and proportionate having regard to the overriding objective including the following factors-

A request for Extended Disclosure must specify which of the Disclosure Models listed in paragraph 8 below is proposed for each Issue for Disclosure defined in paragraph 7 below. It is for the party requesting Extended Disclosure to show that what is sought is appropriate, reasonable and proportionate (as defined in paragraph 6.4). Where Disclosure Model D or E is proposed parties should be ready to explain to the court why Disclosure Model C is not sufficient.

The objective of relating Disclosure Models to Issues for Disclosure is to limit the searches required and the volume of documents to be disclosed. Issues for Disclosure may be grouped. Disclosure Models should not be used in a way that increases cost through undue complexity.

Within 28 days of the final statement of case each party should state, in writing, whether or not it is likely to request Extended Disclosure to include one or more of Models B, C, D or E (see paragraph 8 below) on one or more issues in the case. At this point it should not particularise the Model(s) or the issue(s) in the case.

Where one or more of the parties has indicated it is likely to request Extended Disclosure, the claimant must within 42 days of the final statement of case, prepare and serve on the other parties a draft List of Issues for Disclosure unless the equivalent of such a list has already been agreed between the parties (for example, as part of a fuller list of issues). The List of Issues for Disclosure should be set out using Section 1A of the Disclosure Review Document (see further paragraph 10 below).

"Issues for Disclosure" means for the purposes of disclosure only those key issues in dispute, which the parties consider will need to be determined by the court with some reference to contemporaneous documents in order for there to be a fair resolution of the proceedings. It does not extend to every issue which is disputed in the statements of case by denial or non-admission.

The claimant should seek to ensure that the draft List of Issues for Disclosure provides a fair and balanced summary of the key areas of dispute identified by the parties' statements of case and in respect of which it is likely that one or other of the parties will be seeking Extended Disclosure.

In the event that a particular Issue for Disclosure has not been included in the List of Issues for Disclosure, or is described in a manner that is unacceptable to the defendant, using section 1A of the Disclosure Review Document the defendant should provide the claimant with its proposed wording or alternative wording for inclusion in the draft List of Issues for Disclosure as soon as practicable but in any event no later than 14 days after service of the draft List of Issues for Disclosure.

In advance of the first case management conference, the parties must discuss and seek to agree the draft List of Issues for Disclosure. They should consider whether any draft Issue for Disclosure can be removed. For each Issue for Disclosure that is maintained, the parties should indicate at this point, using section 1A of the Disclosure Review Document, which Model of Extended Disclosure is sought for each party. Where Model C Disclosure is contemplated the parties should discuss the requests that might apply for the purpose of that disclosure (see further paragraph 10.5 below).

The List of Issues for Disclosure may be revised or supplemented at any time prior to or following the case management conference, including as a result of statements of case or amended statements of case subsequently served or discussions between the parties in relation to the Disclosure Review Document.

If the parties are (subject to the court) agreed that there are preliminary issues suitable for determination before other issues in the case, or that the case should be divided into stages, the parties may apply to the court before any case management conference for an order for the trial of those issues or for trial in stages (and related directions), and they may agree in writing to limit the work towards disclosure required by this Practice Direction until that application has been heard.

In an appropriate case where the claimant is acting in person and a defendant is not the court may request the legal representatives of the defendant to lead on the preparation of the List of Issues for Disclosure.

Extended Disclosure may take the form of one or more of the Disclosure Models set out below.

There is no presumption that a party is entitled to Extended Disclosure, and in particular to Model D or Model E disclosure. No Model will apply without the approval of the court.

8.3 The court may order that Extended Disclosure be given using different Disclosure Models for different Issues for Disclosure in the case. In the interests of avoiding undue complexity the court will rarely require different Models for the same set of documents. The court may also order that Extended Disclosure be given by only one party, or that different Models are to apply to each party's Disclosure on a particular Issue for Disclosure.

Model A: Disclosure confined to known adverse documents

The court may order that the only disclosure required in relation to some or all of the Issues for Disclosure is of known adverse documents in accordance with the (continuing) duty under paragraph 3.1(2) above.

Model B: Limited Disclosure

Model C: Request-led search-based disclosure

Model D: Narrow search-based disclosure, with or without Narrative Documents

Model E: Wide search-based disclosure

Where an order for Model B, C, D or E Extended Disclosure is made on one or more Issues for Disclosure, any adverse documents to be disclosed in compliance with the duty under paragraph 3.1(2) above and not already disclosed must be disclosed at the time ordered for that Extended Disclosure.

In a case where no order for Extended Disclosure is made in respect of a party on any Issue for Disclosure, that party must still disclose all known adverse documents within 60 days of the first case management conference and provide a Disclosure Certificate certifying that this has been done.

The provisions of paragraph 8 and this paragraph 9 do not affect the fact that the duty under paragraph 3.1(2) above is a continuing duty as provided by paragraph 3.3 above: if adverse documents in the control of a party come to its knowledge at a later date they must (unless privileged) be disclosed without delay.

The court may make an order for Extended Disclosure in stages.

When it is necessary to decide any question of what is reasonable and proportionate under a particular Disclosure Model, the court will consider all the circumstances of the case including the factors set out in paragraph 6.4 above and the overriding objective.

Where the Disclosure Model requires searches to be undertaken, the parties must discuss and seek to agree, and the court may give directions, on the following matters with a view to reducing the burden and cost of the disclosure exercise-

In making an order for Extended Disclosure, the court may include any provision that is appropriate including provision for all or any of the following-

In considering Extended Disclosure as well as when complying with an order for Extended Disclosure the parties should have regard to the guidance set out in Section 3 of the Disclosure Review Document.

In an appropriate case, the court may order that the question of which party bears the costs of disclosure is to be given separate consideration at a later stage rather than the costs being treated automatically as costs in the case.

For the avoidance of doubt, Extended Disclosure does not require any document to be translated.

The Disclosure Review Document is the document by which the parties must identify, discuss and seek to agree the scope of any Extended Disclosure sought of Model C, D or E, and provide that information in due course to the court.

In a complex case the format of the Disclosure Review Document may be modified as required in order that information is exchanged and in due course provided to the court in an efficient, convenient and helpful format.

The parties' obligation to complete, seek to agree and update the Disclosure Review Document is ongoing. If a party fails to co-operate and constructively to engage in this process the other party or parties may apply to the court for an appropriate order at or separately from the case management conference, and the court may make any appropriate order including the dismissal of any application for Extended Disclosure and/or the adjournment of the case management conference with an adverse order for costs.

In the Disclosure Review Document each party should (save as already described for Initial Disclosure: see paragraph 5.4(2) above) describe any searches for documents that it has already undertaken or caused to be undertaken for the purposes of the proceedings (including in advance of the commencement of the proceedings).

Any party proposing Model C Extended Disclosure must complete Section 1B of the Disclosure Review Document and provide it to the other parties no later than 28 days after the defendant has responded in accordance with paragraph 7.5 above to the claimant's draft List of Issues for Disclosure. Any party provided with a completed Section 1B in this way must respond within 14 days by completing the "response" column either agreeing to the request or giving concise reasons for not agreeing to the request.

Having agreed the List of Issues for Disclosure and exchanged proposals on Model(s) for Extended Disclosure, the parties should prepare and exchange drafts of Section 2 of the Disclosure Review Document (including costs estimates of different proposals, and where possible estimates of likely amount of documents involved) as soon as reasonably practicable and in any event not later than 14 days before the case management conference.

The parties must seek to resolve any disputes over the scope of any Extended Disclosure sought in advance of the first case management conference. Any disputes which have not been resolved will normally be decided by the court at the first case management conference.

A finalised single joint Disclosure Review Document should be filed by the claimant not later than 5 days before the case management conference. Related correspondence and earlier drafts should not ordinarily be filed.

The parties must each file a signed Certificate of Compliance substantially in the form set out in Appendix 3 as soon as reasonably practicable after the claimant has filed the finalised single joint Disclosure Review Document but in any event in advance of the case management conference.

In an appropriate case where the claimant is acting in person and a defendant is not the court may request the legal representatives of the defendant to lead on the preparation and filing of the Disclosure Review Document.

The parties may seek guidance from the court by way of a discussion with the court in advance of or after a case management conference, concerning the scope of Extended Disclosure or the implementation of an order for Extended Disclosure, where-

A Disclosure Guidance Hearing may be fixed by issuing an application notice, before or after a case management conference. The application notice should contain a statement confirming the matters at (1) and (2) of paragraph 11.1 above. Evidence will not normally be required for a Disclosure Review Hearing and an early hearing will be offered where possible. The application will have a maximum hearing length of 30 minutes and a maximum of 30 minutes pre-reading.

At a Disclosure Guidance Hearing the court will generally expect a legal representative with direct responsibility for the conduct of disclosure to be the person who participates on behalf of each party in the discussion concerning the scope of Extended Disclosure or the implementation of an order for Extended Disclosure.

The guidance given at a Disclosure Guidance Hearing will be recorded in a short note, to be approved by the court. Whilst the primary function of the Disclosure Guidance Hearing is to provide guidance, for the avoidance of doubt the court may, where appropriate, make an order at a Disclosure Guidance Hearing.

Unless otherwise ordered, the costs of a Disclosure Guidance Hearing are costs in the case and no order from the court to that effect is required.

An order for Extended Disclosure is complied with by undertaking the following steps-

The order for Extended Disclosure will not have been complied with until each step specified in paragraph 12.1 has taken place.

If a party cannot produce a particular document (because the document no longer exists, the party no longer has it in its possession or for any other reason) the disclosing party is required to describe each such document with reasonable precision and explain with reasonable precision the circumstances in which, and the date when, the document ceased to exist or left its possession or the other reason for non-production. If it is not possible to identify individual documents, the class of documents must be described with reasonable precision.

In the case of a company, firm, association or other organisation, or where the Disclosure Certificate is signed by a party on behalf of other parties, the certificate must-

A party may not without the permission of the court or agreement of the parties rely on any document in its control that it has not disclosed at the time required for Extended Disclosure (or within 60 days after the first case management conference in a case where there will be no Extended Disclosure). For the avoidance of doubt the party and its legal representatives remain under the duties under paragraph 3.1 (the Disclosure Duties) and 3.2 above.

Save where otherwise agreed or ordered, a party shall produce-

Electronic documents should generally be provided in the form which allows the party receiving the documents the same ability to access, search, review and display the documents (including metadata) as the party providing them.

A party should provide any available searchable OCR versions of electronic documents with the original, unless they have been redacted. If OCR versions are provided, they are provided on an "as is" basis, with no assurance to the other party that the OCR versions are complete or accurate.

A party should not disclose more than one copy of a document unless additional copies contain or bear modifications, obliterations or other markings or features which of themselves cause those additional copies to fall within a party's Initial or Extended Disclosure obligations.

A person who wishes to claim a right or duty (other than on the basis of public interest immunity) to withhold disclosure or production of a document, or part of a document, or a class of documents which would otherwise fall within its obligations of Initial Disclosure or Extended Disclosure may exercise that right or duty without making an application to the court subject to-

A party who wishes to challenge the exercise of a right or duty to withhold disclosure or production must apply to the court by application notice supported where necessary by a witness statement.

The court may inspect the document or samples of the class of documents if that is necessary to determine whether the claimed right or duty exists or the scope of that right or duty.

If there are material concerns over the confidentiality of a document (whether the confidentiality benefits a party to the proceedings or a third party), the court may order disclosure to a limited class of persons, upon such terms and subject to such conditions as it thinks fit. The court may make further orders upon the request of a party, or on its own initiative, varying the class of persons, or varying the terms and conditions previously ordered, or removing any limitation on disclosure.

A party may redact a part or parts of a document on the ground that the redacted data comprises data that is-

Any redaction must be accompanied by an explanation of the basis on which it has been undertaken and confirmation, where a legal representative has conduct of litigation for the redacting party, that the redaction has been reviewed by a legal representative with control of the disclosure process. A party wishing to challenge the redaction of data must apply to the court by application notice supported where necessary by a witness statement.

Where there has been or may have been a failure adequately to comply with an order for Extended Disclosure the court may make such further orders as may be appropriate, including an order requiring a party to-

The party applying for an order under paragraph 17.1 must satisfy the court that making an order is reasonable and proportionate (as defined in paragraph 6.4).

An application for any order under paragraph 17.1 should normally be supported by a witness statement.

The court may at any stage make an order that varies an order for Extended Disclosure. This includes making an additional order for disclosure of specific documents or narrow classes of documents relating to a particular Issue for Disclosure.

The party applying for an order under paragraph 18.1 must satisfy the court that varying the original order for Extended Disclosure is necessary for the just disposal of the proceedings and is reasonable and proportionate (as defined in paragraph 6.4).

An application for an order under paragraph 18.1 must be supported by a witness statement explaining the circumstances in which the original order for Extended Disclosure was made and why it is considered that order should be varied.

The court's powers under this paragraph include, but are not limited to, making an order for disclosure in the form of Models B to E and requiring a party to make a witness statement explaining any matter relating to disclosure.

Where a party inadvertently produces a privileged document, the party who has received the document may use it or its contents only with the permission of the court.

Where a party is told, or has reason to suspect, that a document has been produced to it inadvertently, that party shall not read the document and shall promptly notify the party who produced it to him. If that party confirms that the document was produced inadvertently, the receiving party shall, unless on application the court otherwise orders, either return it or destroy it, as directed by the producing party, without reading it.

Where a party inadvertently produces a privileged document, the party who has received the document may use it or its contents only with the permission of the court.

If a party has failed to comply with its obligations under this pilot including by-

A party may at any time request a copy of a document which has not already been provided by way of disclosure but is mentioned in-

Copies of documents mentioned in a statement of case, witness evidence or an expert's report and requested in writing should be provided by agreement unless the request is unreasonable or a right to withhold production is claimed

A document is mentioned where it is referred to, cited in whole or in part or there is a direct allusion to it.

Subject to rule 35.10(4), the court may make an order requiring a document to be produced if it is satisfied such an order is reasonable and proportionate (as defined in paragraph 6.4).

The parties are required to provide an estimate of what they consider to be the likely costs of giving the disclosure proposed by them in the Disclosure Review Document, and the likely volume of documents involved, in order that a court may consider whether such proposals on disclosure are reasonable and proportionate (as defined in paragraph 6.4). These estimated costs may be used by the court in the cost budgeting process.

In cases where the cost budgeting scheme applies, if it is not practical to complete the disclosure section of Form H in relation to disclosure prior to the court making an order in relation to disclosure at the case management conference, the parties may notify the court that they have agreed to postpone completion of that section of Form H until after the case management conference. If they have agreed to postpone they must complete the disclosure section within such period as is ordered by the court after an order for disclosure has been made at the case management conference. Where possible the court will then consider (and if appropriate, approve) that part of the cost budget without an oral hearing.

Proceedings for contempt of court may be brought against a person who signs, or causes to be signed by another person, a false Disclosure Certificate without an honest belief in its truth.

Rules 31.16 and 31.17 do not limit any other power which the court may have to order-