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Disclosure reform pilot to begin in January 2019

Crosse: Useful consultation period

Civil Procedure Rules Committee last week gave its ‘in principle’ approval to the disclosure working group’s proposals being piloted next year, it has emerged.

The pilot will operate from 1 January 2019 in the Business and Property Courts – London, Birmingham, Bristol, Cardiff, Leeds, Liverpool, Newcastle and Manchester – and last for two years.

According to Simmons & Simmons partner Ed Crosse, the former president of the London Solicitors Litigation Association who has worked on the reforms, final approval of the rules will be sought at the next committee meeting next month.

He said the proposals, first published in November 2017 [1], “have been significantly improved as a result of the feedback” received during the three-month consultation that followed, which comprised written responses and 26 roadshow meetings and discussions around the country.

The consultation led to the start-date being moved to 2019 – the original plan had been as soon as practicably possible – to allow the courts, profession and clients time to prepare.

Professor Rachael Mulheron of the Queen Mary University of London will lead a project to monitor the new rule during the pilot.

The working group’s report concluded that not only has the standard disclosure test introduced in the CPR not reduced either the volume or cost of disclosure, but also the volume of data that might disclosed has reached “unmanageable proportions” in many cases.

In any case, the existing rule was “conceptually based on paper disclosure and is not fit for purpose when dealing with electronic data”.

Under the pilot, the “fundamental yardstick for the parties and the court, throughout, should be what is appropriate in order fairly to resolve the issues in the case”, the working party said.

It recommended that what has been termed ‘standard disclosure’ should disappear in its current form; “its replacement should not be ordered in every case and will not be regarded as the default form of disclosure”.

The duties of the parties, and of their lawyers, in relation to disclosure would be expressly set out. These would include a duty to cooperate with each other and assist the court over disclosure, and to disclose known adverse documents, irrespective of whether an order to do so is made.

There would be ‘basic disclosure’ of key/limited documents relied on by the disclosing party and necessary for other parties to understand the case they have to meet, to be given with statements of case. A search should not be required for basic disclosure, although one may be undertaken.

The working party said that, for some cases, basic disclosure may obviate the need for any further disclosure.

There have been criticisms of the reforms, with the Law Society warning [2] that they could lead to miscarriages of justice, and a barrister highlighting the problems they could cause [3] in professional negligence claims.