Litigation And ADR Procedure News For In-House Lawyers: UK Construction Focus - December 6, 2018

Our pick of recent news and decisions on dispute resolution procedures for construction claims.

If you would like any further information on the topics below, please contact one of the team listed under "Key contacts".

Civil Procedure Rules news

Disclosure Pilot in force from 1 January 2018

An imminent and significant change to the Civil Procedure Rules (CPR) is the introduction of the Disclosure Pilot Scheme from 1 January 2019. It will be governed by new Practice Direction (PD) 51U, which effectively replaces CPR31 and current PDs.

First announced in November 2017 and refined by the Disclosure Working Group following widespread consultation, the two-year, mandatory, pilot scheme was approved by the Civil Procedure Rules Committee in July 2018. It will apply in the Business and Property Courts (B&PC) (including the Technology and Construction Court (TCC)).

The pilot aims to initiate "widespread cultural change" to the disclosure regime, to make the disclosure process more cost-efficient and to give practitioners the chance to feed back on the new procedures to enable ongoing improvements of the new PD.

PD51U removes standard disclosure as currently in force and, for example, introduces disclosure duties, "Initial Disclosure", Disclosure Guidance Hearings, a Disclosure Certificate, a Certificate of Compliance, scope for various different models for Extended Disclosure as well as replacing the Electronic Documents Questionnaire with a new Disclosure Review Document.

The five models for Extended Disclosure are: Model A (Known adverse documents); Model B (Documents relied on and necessary to understand the case); Model C (Request led / specific disclosure); Model D (Standard disclosure); and Model E (Train of enquiry). Transition procedures have also been included to deal with how to use the new disclosure system in existing cases.

Shorter and Flexible Trial Schemes made permanent

The Shorter Trial Scheme and the Flexible Trial Scheme become permanent under PD57AB in the B&PC on 1 October 2018. (The pilot PD51N has now been deleted.)

You can read our summary of the pilots for these schemes here: " Shorter trials: take a short cut" and " Shorter and flexible trials for some construction disputes - and why we need them".

Survey into use of witness evidence in the B&PC

The deadline for responding to the survey on the use of witness evidence in the B&PC closed on 23 November 2018. Prompted by concerns raised by the Witness Evidence Working Group that statements have become "over-elaborate" expensive documents...