Disclosure Pilot: The Take-off of Technology Assisted Review

From 1 January 2019, cases heard in the Business & Property Courts throughout the UK will be captured by the mandatory pilot scheme, which aims to address issues in the current regime with regards to disclosure of documents.

Complex claims commonly involve vast volumes of records to be obtained, catalogued and reviewed as part of ongoing case management, to hunt for key documents the parties seek to rely upon. This exercise is physically time consuming and not cost effective, with the costs involved in danger of being disproportionate to the benefit of the case – a key criticism of earlier disclosure standards.

This had led to an increasing shift towards disclosure of electronic documents in the form of emails, spreadsheets, designs and plans etc., with specialist e-disclosure software being used to assist the document discovery and review process.

The use of software allows specific searching and interrogation of electronic records, to quickly refer back to key documents and compare different versions of identical documents side by side to establish important differences, particularly useful in contractual disputes with lengthy, complex documents.

New cases should therefore move towards being more cost conscious, with the disclosure pilot providing the automatic assumption that Technology Assisted Review will be a key part of ongoing case management. Although the scheme will run for a two year period, an increased number of claims may potentially be heard in the Business & Property Courts, as Technology Assisted Review may be more accessible to certain claimants.

There is further potential for cases to be resolved sooner due to the streamlining of documents obtained and recorded in one place. This also aids the provision of expert evidence, which relies upon factual documents and records disclosed as the basis the expert opinion is based upon.

The disclosure pilot provides a range of disclosure models to be adopted, the choice of which needs to be justified, discussed and agreed by all parties in the early stages of a case. The new rules force parties to give due consideration to the number of documents being reviewed, the likely expense and difficulty of obtaining documents, as part of the disclosure exercise.

In order to discuss and narrow the scope of a case to justify the appropriate level of disclosure, instructing solicitors need to have knowledge and understanding of the data landscape faced by the parties, i.e. who has various documents, where are they stored and why, what is the format of any software or electronic documents and what capacity is there to extract or obtain this information?

Our experts have in depth sector and industry knowledge for businesses of all sizes, including startups and those in developing markets. Together with a detailed knowledge of the disclosure pilot scheme, this specialist skillset allows a detailed list of documents to be prepared for disclosure purposes.

By engaging forensic experts at the early stages of a case, the parties involved can be fully advised on the key financial issues which need to be reviewed in full for the purpose of proceedings, and specifically what evidence is required to provide the expert accounting opinion.

Key issues can then be built into the discussions around disclosure, with all parties having a better understanding of how the data landscape can be cultivated to resolve the case and achieve an equitable settlement, in the most cost effective and time efficient way possible.

MHA Forensic Accounting specialists are skilled at using globally recognized e-disclosure software for complex litigation and investigation cases as part of preparing fully Court Compliant Expert Witness Reports, which already meet the requirement of the 2019 disclosure pilot.

If you have any questions or would like to discuss this in more detail, please contact Hannah Farmborough or call on 0207 429 4147 to be put in contact with a member of our Forensic Accountancy Team.