This article was first published on Practical Law's Construction Blog.

The evolution of the CPR in the wake of the Jackson reforms included the well-known introduction of the “menu” of disclosure options at CPR 31.5(7). The net effect was to promote, as appropriate and applicable, a movement away from well-established “standard” disclosure to a more tailored approach. With the accompanying provisions of CPR 31 and its Practice Directions, the new approach to disclosure was designed to force parties (and the courts) to consider disclosure and production (and the best approach to adopt) at a very early stage.

Disclosure under review

Seven years on, the implementation of the Jackson reforms is currently under review by a disclosure working group (DWG), chaired by Gloster LJ.

The DWG is expected to report in the summer, with recommendations for reform of the current disclosure process. It is anticipated it will address issues like the perception that parties and the courts have not taken up the menu of disclosure orders with enthusiasm, with many parties continuing to opt for more expensive standard disclosure. Among other things, the DWG is expected to recommend more detailed rules governing and encouraging the use of technology assisted review (TAR) or predictive coding tools to enhance the disclosure process.

As reflected by the terms of its Guide, the TCC was among the first to navigate the new disclosure landscape, directing that standard disclosure may not be appropriate in a given construction case.

However, the DWG’s work and likely report is a timely reminder that parties (and the courts) should remain diligent not to succumb to the temptation of settling, without review, on standard disclosure as the default disclosure order. Naturally, the review and disclosure of electronically stored information (ESI) and documents sits at the heart of the disclosure process. Further, while most practitioners will be live to TAR/predictive coding, it may be unfamiliar to some. Now is the time to learn about it.

Which disclosure order is appropriate?

So, how to select the right order?

To that end, it is useful to start from the start. Assuming a matter falls within CPR 31.5, the court (with the parties’ input) will, ultimately, need to set down a suitable disclosure regime. The order will be shaped by consideration of both the:

  • Overriding objective (that the case is dealt with justly and at proportionate cost).
  • The need to ensure that disclosure is limited to that which is necessary to deal with the case justly.

Relevant factors will also include the issues in the claim, their value and complexity, and the likely cost of disclosure alternatives.

As we know, the menu of disclosure orders that might be made under CPR 31.5(7) can be summarised as:

  • No disclosure.
  • An order that a party discloses the documents on which it relies and, at the same time, requests any specific disclosure that it requires from the other parties.
  • Disclosure on an issue by issue basis.
  • An order that each party discloses documents that it is reasonable to suppose contain information that enables a party to support its own case or to damage that of any other party (or leads to an enquiry that has either of those consequences)
  • Standard disclosure.
  • Any other form of disclosure.

The early identification of the right order has been assisted greatly by the renewed emphasis placed by CPR 31.5 and PD 31B on the prompt identification by, and exchanges and discussions between, the parties about the potential nature, extent and cost of disclosure. Those discussions encompass, of course, the disclosure of ESI (otherwise known as “electronic disclosure”), with those particular discussions often sensibly:

  • Guided by the preparation and exchange of electronic disclosure questionnaires.
  • Recorded in an adapted form of the e-Disclosure Protocol.

Thereafter, the court is (or at least should be, if the parties comply with the CPR) further assisted by the provision of disclosure reports and the submission of proposals for disclosure in advance of the first CMC.

Headline points to consider are set out in the TCC Guide. For example, at paragraph 11.2.1, it notes that in many TCC cases, standard disclosure would not be appropriate in light of the significant volume of documents that might be in play (for which a standard disclosure exercise might prove disproportionately costly to the sums in dispute) or more generally may be disproportionate given the sums in dispute. Also, the parties might hold documents in common thanks to previous dealings and/or following any pre-action protocol exchanges (or similar). It also advocates exploring ways to reduce the scope of disclosure generally (at paragraph 11.2.2), as well as using IT to facilitate disclosure.

TAR/predictive coding

As will likely be endorsed by the DWG, parties and construction lawyers need to consider whether the potential use of TAR/predictive coding tools will impact the disclosure order that should be made. TAR involves a human reviewer “training” a computer system to identify and classify relevant documents within large volumes of data.

TAR can be (and often is) helpfully deployed as part of a disclosure exercise in construction disputes. The potential advantages are clear:

  • There is evidence that in identifying pertinent material, the process is at least as accurate (if not more accurate) than a manual review of documents (and with greater consistency).
  • Subject to the size of the claim and the volume of documents in play, it may be considerably cheaper than a purely manual review process.

However, TAR is not a panacea. First, it may not be appropriate at all for a given case. While predictive coding will often be a cost-effective and proportionate approach in “big document” cases, in lower value cases, the front-loading of cost, and the costs of processing and hosting the electronic documents required to carry out TAR, may not be proportionate. Further, there will be a tipping point in terms of the volume of documents in play below which it is no longer more cost effective to use TAR, as opposed to a predominantly manual review. Recent research suggests a document set should be at least 50,000 documents in size to make TAR appropriate.

Second, and in any event, there are limits to the types of documents that can be subject to TAR, an issue that may well be relevant in a construction dispute. Some electronic files, like images, audio files, design drawings, photographs and Excel spreadsheets are not suitable for predictive coding and will usually require a separate parallel manual review exercise. Similarly, hard-copy documents that are scanned and subject to optical character recognition (OCR) may not be suitable for TAR due to inevitable errors in the scanning process.

The DWG’s report will make essential reading. In the meantime, the message for parties and construction lawyers alike is clear: be sure to keep up the TCC’s pioneering approach to disclosure by tailoring disclosure to fit the case and incorporating the relevant technological tools into that process.