[co-author: Melina Efstathiou]
In October 2022, the UK legal system marked a significant evolution in its approach to disclosure with the implementation of Practice Direction 57AD (PD57AD). This directive, applicable to the Business and Property Courts of England and Wales, replaced the Disclosure Pilot Scheme (PD51U), aiming to streamline the disclosure process, enhance efficiency, transparency and collaboration between parties and reduce litigation costs.
PD57AD introduces a more structured and proportionate approach to disclosure. It emphasizes early identification of relevant issues and encourages cooperation between parties to agree on the scope of disclosure. The directive outlines specific duties for legal representatives, including promoting efficient disclosure practices and utilizing technology to manage large volumes of documents. PD57AD was always aiming towards the simplification of disclosure, no matter how adverse the end results have been.
Key Elements Introduced
- Disclosure Models: PD57AD offers five disclosure models (A to E), ranging from no disclosure of documents to wide search-based disclosure. Parties must agree on the appropriate model for each issue in the case, allowing flexibility for a combination of models and promoting a tailored approach to disclosure (justice.gov.uk).
- Disclosure Review Document (DRD): The DRD is a central component of PD57AD, requiring parties to outline the issues for disclosure, propose suitable models, and detail the documents to be disclosed. It promotes proactive communication, transparency and facilitates the early resolution of disclosure disputes.
- Less Complex Claims (LCC): For claims valued under £1 million or deemed less complex, PD57AD provides a simplified disclosure regime. This approach reduces the burden on parties and the court, ensuring that disclosure is proportionate to the case’s complexity.
- Use of Technology: PD57AD mandates the use of technology to manage disclosure efficiently. The expectation is that legal representatives will utilize tools such as Technology Assisted Review (TAR) and data analytics to handle large volumes of electronic documents effectively.
Implications for Legal Practitioners
The implementation of PD57AD signified a cultural shift in the UK legal landscape. Legal practitioners adapted to the new requirements by engaging in early and meaningful discussions with opposing parties, selecting appropriate disclosure models, and leveraging technology to manage documents. Failure to comply with PD57AD can result in sanctions, including adverse cost orders.
PD57AD represents a progressive step towards modernizing the UK’s disclosure process. By promoting proportionality, encouraging cooperation, and embracing technological solutions, the directive aims to make disclosure more efficient and cost-effective. Legal professionals must familiarize themselves with the provisions of PD57AD to navigate the disclosure process successfully and uphold the standards set by the directive. As a direction it further lists an array of potential sanctions which could be imposed in the case on non-compliance with disclosure obligations. These may include:
- Cost penalties – The court may order the non-compliant party to pay additional costs.
- Adverse inferences – The court may infer that withheld or improperly disclosed documents contain unfavorable information.
- Striking out claims or defenses – In extreme cases, the court may strike out a party’s claim or defense.
- Contempt of court proceedings – If the breach is severe, the party may face contempt proceedings.
The court has discretion to determine the appropriate sanction based on the severity of the non-compliance. If you’re dealing with a case under PD57AD, ensuring full compliance is crucial to avoid these repercussions.
However, even though the discretionary sanctions per the above exist, the process is still not fully streamlined nowadays, and parties are almost always faced with unnecessary delays and complexity due to non-compliance with the direction’s objectives.
Legislative Introduction Versus Reality – Common Pitfalls
PD57AD was a revolutionary and ambitious initiative, one which finally introduced a much more regimented approach to disclosure, but one which did not go without presenting challenges for the parties involved. Let us acknowledge and address a few of the challenges, still very much vivid in our area.
- Challenges with identification and transparency of data
It is a very common challenge that, at the time of requirement of exchange of information around the data volumes and data sources at the Case Management Conference (CMC), the information is either not there at all or rather incomplete. This could be due to the vagueness of the scope of disclosure, lack of clarity and/or confirmation from the end clients’ side of all data sources potentially falling within scope and the tardiness in the provision of clear data volumes. Therefore, the “declaration” of data for the Judge is often a speculative, to be revisited, exercise at that stage.
- Disagreement in the interpretation of the directive; declaration of methodologies to be followed by parties upon CMC, which will change throughout the course of disclosure
It is not always that the duties of transparency in terms of data sources, data volumes and methodologies in terms of technology application for the review and analysis of the documents are interpreted in identical ways by the parties involved. Often the outline of intended features to be used is just inserted as blanket language without actual specificity and logistics. This is far from ideal when one side is basing their approach on the other side’s approach, only to find out what was actually followed much later in the process, essentially upon exchange of disclosure between parties.
- Proactive exchange of a comprehensive eDiscovery protocol and adhering to it
This is one of the biggest pitfalls of the application of PD57AD as it does not explicitly mandate the exchange of a formal ediscovery protocol between parties. Naturally, the DRD process effectively serves this function by requiring parties to collaborate and share practical information before the Case Management Conference (CMC) but this does not always incentivise parties to be clear with how the propose to produce to the other side and having time to peruse and contest the other side’s proposal, as well.
It is, sadly, common practice for law firms to not exchange protocols at the same time and early enough in the process so e.g. elements of the production workflows and production outputs can be scrutinised and contested if needed. In fact, the most common practice still remains that productions get delivered on the day of the Disclosure Deadline and parties are often faced with an output that either a) does not meet the specifications of their system or b) has different specifications to the ones outlined in the other side’s ED protocol.
AI, Applications of AI and the New Era of GenAI
PD57AD encourages the use of AI and technology to streamline disclosure while maintaining accuracy and transparency.
Several AI tools are designed to assist with eDiscovery and disclosure compliance under the practice direction. These tools focus on automating document review, ensuring defensibility, and improving efficiency in legal disclosure. Some examples include:
- Technology-Assisted Review (TAR) platforms – AI-driven tools that help legal teams prioritize and categorize documents efficiently.
- Predictive coding software – Uses machine learning to identify relevant documents based on prior review patterns.
- Data analytics solutions – AI-powered platforms that analyze large datasets to detect anomalies or patterns in disclosure.
- Automated redaction tools – Ensure compliance with confidentiality requirements by identifying and redacting sensitive information.
However, Generative AI (GenAI) and AI in general present several challenges for PD57AD, particularly in the context of eDiscovery and legal disclosure. Some key concerns include:
- Transparency & Auditability – AI-driven document review tools may lack clear traceability, making it difficult to verify how decisions were made.
- Consistency in Disclosure – PD57AD requires defensible disclosure processes, but AI-generated outputs can be unpredictable, raising concerns about reproducibility.
- Data Security & Confidentiality – AI models rely on large-scale data processing, which could introduce risks related to data privacy and security.
- Legal & Ethical Risks – The use of AI in disclosure exercises may lead to unintended biases, misinterpretations, or even false positives in document classification.
- Regulatory Uncertainty – PD57AD does not yet provide specific guidance on how GenAI should be integrated into disclosure processes, leaving legal teams unsure about best practices.
A recent International Legal Technology Association (ILTA) guide aims to address these concerns by offering practical recommendations for using GenAI in legal disclosure while ensuring compliance with PD57AD. As AI adoption grows, further clarifications and updates to PD57AD may be necessary to maintain fairness, accuracy, and defensibility in legal proceedings.
For greater confidence in Generative AI (GenAI) within UK legal disclosure, several key improvements are needed:
- Clear Regulatory Guidance – The UK legal sector has been cautious in adopting GenAI due to the lack of explicit judicial and regulatory frameworks. Establishing formal guidelines on AI-assisted disclosure would provide clarity.
- Defensibility – AI tools must ensure traceability in decision-making, allowing legal teams to verify how documents are classified and reviewed.
- Ethical & Legal Safeguards – AI adoption should align with UK Disclosure Rules, ensuring proportionality, fairness, and defensibility in legal proceedings.
- Industry Collaboration – Legal professionals and technologists must work together to develop best practices for AI-assisted disclosure, as seen in the above ILTA guide.
- Trustworthy AI Frameworks – AI models should incorporate robust governance, ethics, and security measures to ensure compliance with UK regulations.
The UK courts are gradually exploring AI’s role in disclosure, but confidence will grow as guidance evolves and best practices become widely adopted.
For more detailed information on PD57AD, you can refer to the official Practice Direction document available on the Justice.gov.uk website.
[View source.]
