In 2016, in response to concerns regarding the excessive costs, scale, and complexity of disclosure, Sir Terence Etherton, the Master of the Rolls, established a Disclosure Working Group (“the Working Group”). Chaired by Lady Justice Gloster, the Working Group comprises of a wide-range of lawyers, judges, and legal experts. Because of the amount of disclosure material available now, especially in electronic form, the Working Group concluded that the current rules were not fit for purpose.
Over 18 months, the group identified the following key defects in the current disclosure regime:
- Since the CPR came into force 18 years ago the volume of data that may fall to be disclosed has vastly increased, often to unmanageable proportions. The hope that the standard disclosure test introduced in the CPR would reduce the volume of disclosure, and its cost, has not been fulfilled.
- 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 is inadequate engagement between the parties and their advisers prior to the first CMC in relation to
- The existing rule is conceptually based on paper disclosure and is not fit for purpose when dealing with electronic data.
In addition to conducting their own research, the Working Group asked for and received extensive feedback and consulted with many interested parties.
Announcement of proposals
In November 2017, the Working Group announced a number of proposals relating to disclosure and how to make it less complex, burdensome and more cost-effective.
Practitioners can expect the courts to have far more of a say in disclosure matters under the proposed scheme. Proposed disclosure orders will be examined far more closely, regardless of whether both parties agree to them. Therefore, it will be prudent for parties involved in a case to quickly establish what the most cost-effective and proportionate method and scope of disclosure will be regarding a particular matter.
What follows is a summary of the Working Group’s proposals:
Basic and Extended Disclosure
The proposal introduces ‘Basic Disclosure’. This occurs when one party files its Statement/s of Case. Unless the matter falls under a limited set of exception, all parties are required to disclose some key documents at the outset of the process. Basic disclosure is designed to ensure all parties understand the case they have to meet. The process should not require a search, although one may be undertaken.
To move beyond Basic Disclosure, a party must apply for Extended Disclosure. When considering an application, the court will look at:
- the nature and complexity of the issues in the proceedings;
- the importance of the case, including any non-monetary relief sought;
- the likelihood of documents existing that will have probative value in supporting or undermining a party’s case;
- the number of documents involved;
- the ease and expense of retrieval of any particular document (taking into account any limitations on the information available and on the likely accuracy of any costs estimates);
- the financial position of each party; and
- the need to ensure the case is dealt with expeditiously, fairly and at a proportionate cost
According to the proposal document, after the close of statements of case, and before the Case Management Conference, the parties should be required to discuss and jointly complete a joint Disclosure Review Document (“DRD”) (which would replace the existing Electronic Disclosure Questionnaire) to:
- List the main issues in the case for the purposes of disclosure (and the matters of common ground);
- Exchange proposals for “Extended Disclosure” (and if so on what Disclosure Model for which issue(s)); and
- Share information about how documents are stored and how they might (if required) be searched and reviewed (including with the assistance of technology, and if so which).
Breaking down of disclosure models
The Working Group’s proposal breaks down disclosure into five different models, unless (and this would only apply in exceptional circumstances), a bespoke model is appropriate. The models are:
- Model A: No order for disclosure
- Model B: Limited disclosure of the key documents – parties are relying on to support their claim or defence;
- Model C: Request-led search-based disclosure – the disclosure of particular or narrow classes of documents;
- Model D: Narrow search-based disclosure -similar to the current Standard Disclosure regime; or
- Model E: Wide search-based disclosure – only to be ordered in an exceptional case.
The key difference under the proposal is that Standard Disclosure will only be ordered if deemed necessary and proportionate. In addition, at the Case Management Conference, the court will be active in deciding what model is appropriate and will not simply accept the model proposed by the parties.
Under the new scheme, a Form H Costs Budget should be completed only after an order for disclosure has been made. This alleviates the common problem that occurs under the current Rules, whereby parties sometimes substantially underestimate the costs associated with disclosure because Form H is completed before the collection of documents had been concluded.
It is clear from the Working Party’s proposal that the drive to reduce the costs of litigation, launched under the Jackson Reforms, shows no signs of abating. However, as with anything, cutting costs can lead to a reduction in quality. The proposals call for clear sanctions to be put in place for non-compliance. Could this result in parties to litigation skimping on certain elements of disclosure, thus potentially prejudicing their client’s chance of success?
The proposals, which will form a scheme are expected to be submitted to the Civil Procedure Rules Committee for review and approval in March/April 2018. The Pilot will then be published and commence. The initial rollout will be in the Business and Property Courts in the Rolls Building and in the centres of Bristol, Cardiff, Birmingham, Manchester, Leeds, Newcastle, and Liverpool for a two-year period.
No doubt, any potential red-flags will come to light during the two-year trial. As this progresses, we will keep you up-to-date with developments.
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