How the disclosure pilot could curb costs

Field: There needs to be a fundamental shift in the way practitioners behave

Guest post by Caroline Field of Fox & Partners

The consultation on the new draft rules for disclosure in civil proceedings in England and Wales closed in February. If approved by the Civil Procedure Rule Committee, they will be the subject of a two-year pilot in the Business and Property Courts in London and the regional centres.

The proposed reforms were developed in response to concerns expressed by the GC100 (the voice of the general counsel and company secretaries working in the FTSE 100 companies), court users, lawyers and judiciary.

The GC100 said that, despite the 2013 reforms, the burden and costs of giving disclosure in civil litigation had continued to increase.

For many in the legal profession, access to justice and equality of arms are a key driver to support change. The time-consuming, demanding and expensive nature of the process often deters claimants from pursuing meritorious claims.

The issues

The key defects of the current regime identified by the Rolls Building disclosure working group (DWG) were:

  • The data explosion in the last 20 years has vastly increased the number of documents to be considered as part of a standard disclosure exercise;
  • A perception that neither the profession nor the judiciary have embraced the alternative orders under CPR 31.5(7), meaning that standard disclosure has become the default;
  • Disclosure is not sufficiently focused on the key issues for disclosure. Issues often arise at the review stage and expensive applications follow; and
  • There is insufficient cooperation and engagement between the parties, who come at the exercise from very different perspectives. The claimant often demands no stone is unturned and the defendant objects to the cost of retrieving, searching and reviewing vast quantities of data to find the claimant’s ‘smoking gun’, which rarely exists; and
  • Recognition by the judiciary that it could do more to robustly manage the excesses. However, the practice which has developed means the court has limited information on which to make appropriate orders.

Tackling the issues

In brief, the DWG’s solution is positive duties backed by proportionate sanctions to ensure that by the time the parties get to the CMC, they will have done their best to identify the issues which require disclosure, what the scope of disclosure is, how parties should retrieve their data and where particular challenges may lie.

The duties include a requirement to disclose known adverse documents irrespective of whether an order for extended disclosure is made. There is also a rule against document dumping, a practice sometimes used to bury key documents in materials of marginal relevance.

Costs are a fundamental part of many of the issues highlighted. Costs must be estimated and help is at hand in the form of disclosure guidance hearings if the parties hit deadlock in their discussions.

Judges are clearly encouraging the parties do their best to resolve all issues and are assuring parties they will not be penalized if they can demonstrate this.

A proposal to defer cost budgeting of the disclosure costs (pre-CMC) forms part of the proposal to address feedback that providing a binding estimate of disclosure costs at such an early stage when an order for disclosure has yet to be made is unrealistic.

On this point, however, some have raised a number of practical concerns about a deferral, including the risk of multiple hearings on costs.

Addressing the cost burden

Whether the rules will tackle the cost burden of disclosure remains to be seen. There is a risk that the cost saving of limiting the scope in certain circumstances will be consumed by the front-loading of work required by the new regime (which many recognise should be done now) and more stringent review requirements going to the probative value of documents.

Some have advocated abandoning certain concepts introduced by the rule, for example, the concept of narrative documents. Instead, they favour a clear rule against document dumping.

In reality, success is likely to depend on the parties’ willingness to cooperate in the spirit of the new regime and the court’s promised robust management of the issues. Some are pressing for more to be done, advocating robust sanctions to clamp down on a practice of parties undertaking a cost/benefit analysis of breaking the rules.

What’s next

Mr Justice Robin Knowles, who was one of the four members of the DWG responsible for drafting the proposals, has urged all to expect the pilot to happen. He has invited stakeholders to come at the reforms positively in circumstances where most acknowledge the need for change.

The test will be what happens in practice. A process designed to make disclosure more efficient and less costly while retaining a ‘cards on the table’ approach gets my vote.

Rules alone cannot achieve this and there needs to be a fundamental shift in the way practitioners behave and encourage their clients to behave. We can all play a part in this and ensure the reforms do the trick.

Caroline Field is partner at Fox & Partners, a specialist partnership and employment practice in the City of London. She is a committee member of the London Solicitors Litigation Association, was involved in the testing of the draft disclosure review document in summer 2017 and has participated in a series of panel discussions during the consultation period to collect feedback on the proposals.

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