Practitioners need to think twice before agreeing standard disclosure and judges to be more proactive to steer them away from it, Lord Justice Jackson said last week.
In the latest of a series of speeches this year reflecting on the progress of his reforms, he urged lawyers to look beyond the profitability that may come from standard disclosure.
In a speech to a Law Society commercial litigation conference, the author of the civil costs reforms said that in large commercial actions and other substantial cases, “too often people are treating standard disclosure as the default option”.
He continued: “Parties frequently agree standard disclosure, seemingly without considering whether other options may be preferable, and the courts accept their agreements. It would be to the public benefit if all involved in the disclosure process gave more attention to the full range of options before simply proposing or agreeing to ‘standard disclosure’.”
He reported that a seminar held earlier this year by the GC 100 group – in which judges, practitioners and court users took part – acknowledged that the tools for controlling disclosure, and therefore cost, contained in CPR 31.5 had been under-used.
Following the seminar, a disclosure working group was created, and Sir Rupert said: “[It] may care to consider whether what is needed is culture change rather than rule change.
“In particular (dare I say it?), perhaps the working group might encourage practitioners to think twice before agreeing standard disclosure (however profitable that may be for the lawyers), and judges to be more proactive, by pressing counsel as to what documents are needed and why, rather than approving any agreed directions for standard disclosure.”
He said judges needed to do more than simply adjudicate upon the parties’ competing submissions: “It is necessary to test the opposing arguments.”
He quoted the experience of one unnamed judge: “When disclosure is an issue during case management, it is not uncommon to find that the parties’ counsel cannot describe the documents which they expect to be relevant, why they might exist or why they will benefit determination of the issues concerned. This is particularly the case for electronic documents, when requests for practical descriptions and examples are usually met with bluster.
“This and the fact that disclosure issues are relatively rare suggests the fault lies with a failure to properly address the issues either internally or with the other side before the hearing. That conclusion is sustained by the fact that I usually find a general discussion of the need for the disclosure sought, about the practicalities of effecting disclosure and inspection and over the resulting cost produces a solution by agreement without the need for a decision.”