The Law Society has warned that radical disclosure reforms, due to be piloted in the Business and Property Courts this autumn, could lead to important documents not coming to light and “increase the risk of miscarriages of justice”.
The society called for the pilot to be voluntary for all cases worth less than £500,000, for all contentious probate claims, and those involving the Trusts of Land and Appointment of Trustees Act.
Responding to a consultation from the Disclosure Working Group (DWG) chaired by Lady Justice Gloster, the society said the group should consider whether the courts’ existing powers were sufficient, rather than overhauling the process “in its entirety”.
The society went on: “Significant time and resource will be required to ensure the judiciary are able to actively case manage and order appropriate disclosure on a case-by-case basis. The proposals will not have the desired impact without significant control from the judiciary.
“We have some concerns about the amount of judicial time that will be required to accommodate the proposals. The resources of the court are already overstretched. The need for additional court time is likely to result in delays.”
Under the reforms, parties would be under a duty to disclose known adverse documents, irrespective of whether an order 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.
The plan is for a two-year pilot across the Business and Property Courts in the Rolls Building and in the centres of Bristol, Cardiff, Birmingham, Manchester, Leeds, Newcastle and Liverpool.
The society said it wanted the DWG to consider “whether there is an issue with disclosure across the board, or if it is limited to high-value commercial litigation”.
The society said the “genesis of the working group and focus of road testing” had been centred on large-scale litigation in London.
“Problems caused by the current disclosure rules may not be as prevalent in cases of more modest value or other types of cases, and there is a danger that curing a perceived malady in the biggest cases in the Business and Property Court could impact on access to justice in the many other cases proceeding through the courts.”
The society said it was concerned whether full consideration had been given to the value of disclosure in the “vast majority of cases” which did not proceed to trial.
“Disclosure is a hugely important tool in resolving cases, and the process reveals contemporaneous documents, which are often of significant probative value and result in cases settling.
“If the proposals are implemented in their current form then we are concerned that important documents, on which cases may turn, may not come to light. As a result, limiting disclosure will increase the risk of miscarriages of justice.”
The society said the costs of the new disclosure practice direction could be “prohibitive” in some cases, particularly the costs of discussions with opponents. It warned that the cost-budgeting process was “at risk of being undermined” by the reforms.
“Disclosure costs will not be determined until after the case management conference (CMC). This means that further work in relation to budgets will need to be undertaken post-CMC. This will result in additional cost and possibly a further CMC to make a final determination on costs budgets.”
On technology, the society warned that smaller firms or litigants in person may not be able to afford the tools specifically required by the new regime.
The society added that disclosure reforms were not appropriate for contentious probate or Trusts of Land and Appointment of Trustees Act cases because they related to “private individuals” who tended to know “what the documents are and where they are”.
While disclosure in these cases could be significant, the search process was not complex and anecdotal evidence suggested the issues identified by DWG did not arise.