Courts must “get a handle” on disclosure pilot costs

Mulheron: Lawyers had concerns about list of issues for disclosure

The Business and Property Courts must “get a handle” on why most solicitors believe the disclosure pilot is not producing cost savings, the professor monitoring its progress has said.

Professor Rachael Mulheron, based at Queen Mary University of London, welcomed extension of the pilot to the end of next year, but said it would take at least 18 months to two years to get “proper costs data” from a big enough sample of lawyers.

The academic said her latest research was based on data from 44 law firms, but most of them (56%) had only done one or two cases in the pilot.

Speaking at a virtual seminar hosted by London’s Commercial Court to mark its 125th anniversary, Professor Mulheron said that when asked whether the pilot, introduced in January 2019, had improved accuracy, co-operation and saved costs, the majority of law firms said it had not.

In particular, she said, it was “very important” to find out whether costs on the pilot were increasing or decreasing.

Her initial research, published earlier this year, showed that parties were not defaulting to standard disclosure.

Instead, where a single model was chosen, more than half of them (53%) were opting for ‘model C’ disclosure – a request-led, search-based disclosure of particular documents or a narrow class of documents.

Professor Mulheron said her latest research showed that most respondents were “very supportive” of initial disclosure being limited to the key documents a party had relied on in its statement of claim.

There was also support for the emphasis the pilot placed on looking at the technology involved at an early stage and on co-operation.

However, she said lawyers had concerns about the list of issues for disclosure, as opposed to the list of issues for trial, which they found “artificial”, too early in proceedings and a source of disputes.

Respondents also said the disclosure review document introduced by the pilot led to frontloading of costs as it needed “a lot of time and thought” to complete.

It required the involvement of senior lawyers and in some cases counsel. When counsel were involved, this “generated a more adversarial environment”.

Meanwhile, the selection of disclosure models for each issue was “generating quite a lot of work and bogging the litigation down”.

Ed Crosse, prime mover behind the pilot and a partner at Simmons & Simmons, said Professor Mulheron’s latest report would be published “very soon” and the Civil Procedure Rule Committee was expected to consider a revised version of the pilot practice direction at its meeting in November.

Mr Justice Robin Knowles said progress “in the right direction” was being made under the pilot, but it was always important to be practical.

“Nobody is proposing that parties list disclosure issues for no reason. It’s a tool that could be useful.”

The judge said there was flexibility in the system and part of the process involved requiring the parties to co-operate, so disclosure was done well.

Sonia Tolaney QC, based at One Essex Court and the chair of the Commercial Bar Association, said her main concerns were the length and complexity of the disclosure pilot procedure.

She said it was not clear how the list of issues “added value” and questioned whether it needed to be compulsory.

Ms Tolaney said lists were very “costly and complex” to negotiate and could be “a bridge too far”.

Natalie Osafo, a senior associate at Stewarts Law, said it was difficult for the parties to agree on the issues for disclosure, there was uncertainty over the drafting of the list and parties tended to include too many issues – 135 in one case.

However, provided the list was well-drafted, it could be a useful requirement leading to a “more focused” disclosure.

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