Disputes 2017: New rules on disclosure?

Despite comments from senior judiciary that new rules are not needed, 2017 is likely to see proposals for a complete revision of the process.

In brief

  • Despite recent comments to the contrary, 2017 may see a proposal for a wholly new Part 31 of the Civil Procedure Rules.

  • Changes that might be considered include removing the current presumption of a right to disclosure and moving away from concepts rooted in hard copy disclosure, such as “inspection” and “lists”, with a working assumption of electronic disclosure.

  • The menu of disclosure options is likely to be revised and get more emphasis, with more detail on how each option works.

A missed opportunity

At the Law Society’s Commercial Litigation Conference on 10 October 2016, Lord Justice Jackson gave a keynote speech in which he said that disclosure was not an area in which any changes to the rules were necessary. This may sound like music to the ears of commercial litigators still getting to grips with the significant changes to the Civil Procedure Rules made over the last few years, but it arguably underestimates the problems with the current disclosure regime.

It was only in 2013 that the rules on disclosure were last re-written, but the changes have made little difference in practice and there is growing discontent with the cost and time expended on disclosure in commercial cases. The 2013 revisions to the rules introduced the “disclosure menu”, with options ranging from no disclosure at all, through arbitration-style disclosure by requests, through to full old-style “train of enquiry” disclosure. This was a promising concept, allowing the disclosure exercise to be tailored to fit the case, taking into account how many really important documents were likely to be found.

In practice, however, the menu has been almost wholly ignored. Parties and judges have continued to default to “standard disclosure”, which was perhaps predictable given that it kept this title in the 2013 rewrite. The fact that the other options in the menu did not have any detail as to how they would work scarcely helped. The option of “disclosure to be given by each party on an issue by issue basis” was provided with no more guidance than that, and unsurprisingly has rarely been chosen.

The electronic age

The other problem with the existing rules is that they are drafted with hard copy documents in mind, with the treatment of electronic documents relegated to a Practice Direction. While there may still be the occasional case where the documents are held in hard copy, electronic storage is now the norm, even in low value cases. Concepts such as providing a “list” and then arranging for “inspection” of documents hark back to an era when solicitors sat in a room at the offices of the other side, going through boxes and holding paper up to the light to see what lay under the Tippex.

In 2017 it is likely that the prospect of new rules on disclosure will move from being downplayed to being a certainty. If the menu of options is to become the basis of active decision-taking about what disclosure is appropriate to a given case, it will need to be fleshed out with necessary definitions, steps and timetables. The first option on that list, of “no disclosure” might usefully be replaced with a default provision that parties provide each other with key documents necessary to understand their own case, at the point pleadings are served, but with no right to further disclosure unless ordered by the court at the Case Management Conference (CMC).

Any new rule should assume that documents will be electronically stored and hard copy only disclosure will be reserved for cases where both parties agree that this will suffice. A useful precedent can be found in Australia, where a maximum limit of pages is used, beyond which electronic disclosure is required. The provision of copies of documents in native format to the other side should be the default setting for disclosure in England and Wales. The use of Technology Assisted Review will inevitably become more established, though it is likely still to be subject to the court’s approval.

It is currently common for the parties to arrive at the first CMC with insufficient knowledge of the data landscape that they will be dealing with during disclosure. Often orders are made for disclosure that prove to be inappropriate once the number of responsive documents is identified, while on other occasions disclosure is held over to a further hearing. Neither approach is efficient. The current rules are ineffective at ensuring adequate engagement by the parties has taken place prior to the first CMC. The approach and timescales at this stage of a case need to be reconsidered.

What it means for you

Expect to see debate and consultation about the disclosure rules in 2017. Commercial parties who use the English courts should engage with this, as the introduction of more effective rules that do not default to the current standard disclosure should offer cheaper and faster dispute resolution in the English courts. Any rule change requires caution for lawyers, however. If new rules are introduced, those not watching carefully may find themselves criticised in the courts and subject to cost sanctions. An increase in the variety of disclosure orders will favour those who prepare well in advance and know exactly what they want to achieve from the process.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.