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Taming the beast – proposed new rules to manage disclosure

As a consequence of the plethora of documentation that exists in the digital age, the disclosure process in litigation is often time consuming and hugely costly to litigants. Following widespread concern in the profession and the Courts, in May 2016, the Master of the Rolls, Sir Terence Etherton set up a Disclosure Working Group (“DWG”) made up of lawyers, experts, and judges to consider the issues with the current disclosure regime, as set out in Part 31 of the Civil Procedure Rules (“CPR”). The DWG has recently put forward their proposals to amend the disclosure rules, and this article sets out a summary of the issues that the DWG has identified and a summary of the proposed changes.

The DWG’s findings

The DWG, chaired by Lady Justice Gloster, identified several issues with the current disclosure regime, including:

1. Since the introduction of the CPR (18 years ago), the volume of data that may fall to be disclosed has vastly increased, often to unmanageable proportions

2. The profession and the judiciary are not using the wide range of alternative orders that are available under CPR 31.5(7)

3. Searches for data / documents are often far wider than is necessary, and disclosure orders are not focussed on the key issues

4. There is inadequate engagement between parties prior to the first Case Management Conference (“CMC”)

5. As the existing rule is conceptually based on paper disclosure, it is not fit for purpose when dealing with electronic data.

The DWG has concluded that there needs to be a “wholesale cultural change” which can only be achieved through the introduction of new rules and guidelines on disclosure. The proposed scheme is expected to be submitted to the Civil Procedure Rules Committee for review and approval in March / April 2018. Following that, it is intended that the rules will be piloted in the Business and Property Courts in the Rolls Building and in Bristol, Cardiff, Birmingham, Manchester, Leeds, Newcastle and Liverpool for two years.

The draft rules are intended to apply more pressure on lawyers and judges to consider and implement the full range of disclosure options that are available under CPR 31.5(7), and to move away from standard disclosure (disclosure of documents which assist or harm the case of any of the parties to the dispute) being the current default option for disclosure.

Summary of the key changes proposed

In summary, the key changes proposed for the pilot are:

1. Standard Disclosure should disappear in its current form

2. Except where the parties agree to dispense with it, “Basic Disclosure” of key / limited documents which are relied upon by the disclosing party, and are necessary for other parties to understand the case they have to meet, will be given at the statements of case stage (e.g. particulars of claim / defence)

3. It is expected that, in moderate and smaller cases, Basic Disclosure may remove the need for service of additional documents known as “Extended Disclosure”

4. Once the parties have concluded the statements of case stage, and before the CMC, the parties should be required to discuss and jointly complete a joint Disclosure Review Document (“DRD”), which will replace the existing Electronic Disclosure Questionnaire in order to: limit the main issues in the case for the purposes of disclosure; exchange proposals for Extended Disclosure; and share information about how documents are stored and how they might be searched and reviewed

5. It is intended that the DRD will provide a mandatory framework in order for the parties and their advisers to co-operate and engage prior to the CMC

6. At the CMC, the Court will consider the DRD and then determine which of the five Extended Disclosure models (called model A to E) should apply to which issues. The models include an order for no disclosure in relation to a particular issue through to the potential to order the production of documents which may lead to a train of enquiry

7. The court is required to be proactive when ordering which model should be followed

8. The key test for the parties and the Court is what is appropriate in order to fairly resolve the issues in the case

9. In relation to Form H costs Budgets, information about disclosure should be completed after the Court has made an order for disclosure rather than before. When filing the completed DRD, parties will, however, be required to give an estimate of the likely costs of disclosure so that the court can consider proportionality at the CMC.

The proposals also provide that more detailed provisions of CPR 31 will remain unchanged (for example in relation to pre-action disclosure, subsequent use of disclosed documents, orders for disclosure against persons not a party, and others).

It is positive that steps are being taken to overhaul the disclosure process. However, we shall have to see the results of the pilot scheme to see whether or not the proposed new rules have the desired effect of increasing early engagement between the parties in relation to disclosure, and ultimately making the disclosure stage more manageable for parties and the court both in time and costs.

Clementine Burch, Associate, Irwin Mitchell LLP

Sabrina Goran, Solicitor, Irwin Mitchell LLP

Published: 22 January 2018

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