English rules on disclosure (‘discovery’ in many jurisdictions) are set for a major overhaul. Draft rules were published in November 2017. Once approved by the Civil Procedure Rules Committee, the resulting draft is intended to be introduced as part of a pilot scheme lasting 2 years, potentially beginning in April 2018 and running in the Business and Property Courts. This will cover virtually all High Court litigation. It will not be optional.
Certainly our rules would benefit from modernisation. They date back to a paper-based era, long before electronic documents and the proliferation of e-mail. Whilst there have been a number of attempts to amend the rules over the last 20 years, most of the changes were optional and were not embraced sufficiently by the judiciary or litigants and their advisors. Reformers seek a wholesale cultural shift, moving away from a presumption that there should be standard disclosure of relevant documents on all issues, supported by an active search for material. So beyond the need to modernise, the intention is to tackle the sheer size of the resulting documents produced with the underlying aim of addressing the increasing cost of English litigation.
Costly it may sometimes be, but the principles underpinning disclosure in our system are much respected. Litigants from around the world value our process as an excellent means of “getting to the truth”. Will the new rules preserve the status quo?
The headline changes
The intention is to rewrite the rules dealing with disclosure entirely.
An express duty of co-operation will be imposed on the parties and their lawyers to assist with the disclosure process to ensure that adverse documents are disclosed. The burden on professional advisers will increase: solicitors are to “cause” their client to comply with their disclosure obligations. Express duties are also set out regarding the need to inform custodians (internally and externally) of the need to preserve documents.
Disclosure will be divided into two stages. Unless they agree otherwise, parties shall give “basic disclosure” comprising key documents - so opponents can understand the case they have to meet. These will be delivered with statements of case, save in circumstances where the material exceeds 500 pages. At this stage, the obligation will only extend to key documents but not to adverse documents and there is no obligation to search for material. So in some senses this simply mirrors existing pre-action obligations.
When serving a statement of case, a party will be required to indicate whether or not it is likely to seek “extended disclosure” on one or more issues. This will be the second stage. This requirement presents an issue for claimants who may not know which matters are likely to be in issue when serving their particulars of claim.
After pleadings have closed but before the Case Management Conference (CMC), parties are expected to co-operate on potential extended disclosure. A Disclosure Review Document (DRD) will be prepared listing each side’s view as to the appropriate model of extended disclosure by reference to each issue. This is a fundamental change.
At the CMC the Court will consider, by reference to the DRD, which of five potential extended disclosure models ought to apply to each issue. So nothing beyond basic disclosure is assured and even that may be avoided by agreement between the parties.
The models for extended disclosure range from the very limited through to the extremely onerous (Model A requires no disclosure at all, whereas Model E extends the scope of what is currently standard disclosure to include documents which “may lead to a train of enquiry that may then result in the identification of other documents for disclosure”). Since differing models of disclosure may apply to different issues in a case, it is easy to imagine matters becoming extremely complex in short order.
At the lower end of the scale (two of the five models), no search is required at all. Model C will involve targeted searches only and by reference to requests made. Regardless of the model in use, parties are still required to disclose adverse documents they know to be in their possession. Clearly that is important and continues our tradition of disclosing adverse documents. But since a party need only disclose adverse documents it is aware of, does this create a perverse incentive deterring parties from carrying out their own searches or any form of deep review? There is also a question as to whose knowledge is relevant for a corporate litigant: should it be the instructing lawyer or someone else? How should the solicitor supervise this?
There can be no doubt that the changes proposed represent a fundamental shift in the way litigation is handled. But the potential complexity and lack of comfort around searches at the lower end of the scale does raise concerns. At this stage it seems highly likely that the pilot scheme will proceed, albeit with limited revisions arising from the current consultation (due to run until the end of February 2018). Whilst reform is needed and the desire to drive costs down is laudable, a balancing act is required. As Brexit draws nearer, the Rules Committee must be mindful of the increased competition presented by our colleagues across Europe with both Brussels and Paris launching rival commercial courts in a bid to capture some of the important work undertaken in London. Our rules should, therefore, seek to preserve the best parts of our existing disclosure process and the confidence it instils in those choosing to litigate here.