Parties continue to “play games” in disclosure pilot

Crosse: Broadly positive feedback

There is still “a lot of game-playing” in relation to disclosure despite the aim of the ongoing pilot to introduce a new culture into the way the process is handled, it has been claimed.

However, the pilot has led to a greater focus on narrowing the scope of disclosure.

Newly published minutes of November’s Commercial Court users group include an update on the progress of the two-year pilot, which began in January 2019 and features five models of extended disclosure.

Ed Crosse, a former president of the London Solicitors Litigation Association and prime mover behind the pilot, reported to the meeting that feedback had been “broadly positive”.

But, he said there was “still a lot of game-playing”, with parties taking tactical positions on the completion of the disclosure review document (DRD) and having to be encouraged to adopt a cooperative approach.

Initial research by Professor Rachel Mulheron has shown that, across the Business and Property Courts, parties were not defaulting to standard disclosure.

In cases where a single model was ordered, 53% were for model C – a request-led, search-based disclosure of particular documents or a narrow class of documents.

Where multiple orders were made, 42% were for model C and the rest either model B (similar to initial disclosure but without document/page limits or a search) or model D (narrow search-based disclosure of documents which are likely to support or adversely affect a party’s claim or defence or that of another party in relation to one or more issues for disclosure).

In the Commercial Court, 80% opt for model C. The minutes of the meeting recorded: “Mr Crosse expressed concern that parties might be seeking multiple model C orders and thereby overcomplicating the process. This will require investigation.” In the Technology & Construction Court model B has proved popular.

Mr Crosse, a partner at Simmons & Simmons, said that, in larger cases, the pilot has led to a greater focus on narrowing the scope of disclosure, but there was a concern that, in lower value claims, the process was increasing costs. He raised the possibility of imposing a financial threshold or providing more detailed guidance in the practice direction.

There may also need more guidance on what is expected with preservation notices, as these “have caused some issues with large corporates”.

Initial disclosure has been positive and useful, with some users suggesting that it should include known adverse documents. But Mr Crosse said the working group had considered this in devising the pilot but decided it would create additional work.

“As for DRDs, parties are taking different approaches and not necessarily focusing on the key issues, but that this might start to bed down with time.”

Very few parties have taken the opportunity to hold disclosure guidance hearings, which Mr Crosse suggested may be because 30 minutes was seen as too short and judges would not have had the time to read in. Where hearings were held, parties are treating them as akin to case management conferences.

Lord Justice Flaux – former judge in charge of the court – said feedback from Commercial Court judges was in line with that reported by Mr Crosse.

Mr Justice Robin Knowles told the meeting that the pilot was “bearing fruit”.

The minutes said: “Knowles J observed that the world was looking on and the year ahead would provide continued opportunity. There was a need to vigilant about not overcomplicating the process, respecting the express duty of cooperation, and making sure that judges and lawyers alike keep hearing lengths under control.”

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