Judiciary signals major culture and rule change to control disclosure

Etherton: Effective disclosure a key attraction of English law

A “wholesale cultural change” in the approach to disclosure in the Business and Property Courts is needed, a judiciary-led working group has said, which will be brought about by a completely new rule and guidelines applying to the majority of cases.

The group, chaired by Lady Justice Gloster, has put forward a pilot which will include a duty to disclose known adverse documents, irrespective of whether an order to do so is made.

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 proposed scheme should be submitted to the Civil Procedure Rules Committee for approval in March/April 2018, to commence “as soon as reasonably practicable thereafter”. There will be further consultation with judges, lawyers and users between now and then.

The review was commissioned in May 2016 by Sir Terence Etherton when he was Chancellor of the High Court in response to widespread concerns about the perceived excessive costs, scale and complexity of disclosure.

The working group has concluded that the standard disclosure test introduced in the CPR to reduce the volume of disclosure, and its cost, has not been fulfilled; rather, 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”.

Both lawyers and judges were also to blame, the group said: “Neither the profession, nor the judiciary, has adequately utilised the wide range of alternative orders under CPR 31.5(7). In practice, standard disclosure has remained the default order for most cases.

“Searches are often far wider than is necessary, and disclosure orders are not sufficiently focused on the key issues. This often results in the production of vast quantities of data, only a small proportion of which is in fact referred to at trial.”

There was also “inadequate engagement” between the parties prior to the first case management conference (CMC).

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.

“It is not intended to be an onerous process and there are a number of exceptions where the provision of basic disclosure can be dispensed with entirely.”

After close of statements of case, the parties would be required to complete a joint disclosure review document – replacing the existing electronic disclosure questionnaire – that would “provide a mandatory framework for parties and their advisers to co-operate and engage prior to the first CMC with a view to agreeing a proportionate and efficient approach to disclosure”.

Where ‘extended disclosure’ was required, there would be five models for the court to order, ranging from an order for no disclosure in relation to a particular issue, through to the widest form of disclosure, requiring the production of documents which may lead to a train of enquiry.

Precedent H cost budgets in relation to disclosure would be completed after an order for disclosure has been made rather than before. “Parties will, however, be required to give estimates of the likely costs of disclosure when filing the completed DRD in order that the question of proportionality may be considered at the CMC before an order for disclosure is made.”

There would be express sanctions for non-compliance.

Sir Terence, now Master of the Rolls, said: “It is imperative that our disclosure system is, and is seen to be, highly efficient and flexible, reflecting developments in technology. Having effective and proportionate rules for disclosure is a key attraction of English law and English dispute resolution in international markets.”

Rosemary Martin, group general counsel and company secretary at Vodafone Group UK and chair of the GC100 lobbying group that pushed for the review, said: “The GC100 members are delighted that the working group has taken the task of revising the disclosure rules so seriously and with a much more radical attitude than many were expecting.

“If, collectively, we can get behaviours to change too – which is the difficult bit – then this initiative will be enormously valuable for the future.”

The subcommittee that drafted the pilot rules comprised Chancery Division Chief Master Marsh, Mr Justice Robin Knowles, Simmons & Simmons partner Ed Crosse, who is president of the London Solicitors Litigation Association, and Vannina Ettori, legal adviser and private secretary to the Chancellor of the High Court.

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