Driven by the need to control the spiralling costs of civil litigation, Sir Rupert Jackson’s package of reforms targets both the funding of civil litigation and civil litigation procedure. Jackson identified disclosure as a major contributing factor to the rising costs and, accordingly, the reforms include significant changes to the disclosure process.
Some of Jackson’s recommendations, including the practice of exchanging electronic disclosure questionnaires, have already been implemented. Further changes were introduced by a new Civil Procedural Rule 31.5, and for all multi-track cases (other than personal injury cases), this rule will apply to all Case Management Conferences (“CMCs”) that take place from today.
The old position
There used to be a presumption in favour of “standard disclosure”, which requires a party to disclose documents on which it relies and those that support or adversely affect its own case (following a reasonable search), and documents that support or adversely affect another party’s case.
Theoretically, the courts could have considered an alternative to standard disclosure. For example, the courts did have powers to order disclosure in stages or to dispense with disclosure altogether. However, such powers were rarely exercised. The courts almost always settled on the default position of standard disclosure, which often meant significant time and cost was expended by the parties.
The key changes
1. Menu of options for disclosure
Standard disclosure will no longer be the normal or default position. Instead, the new rules contain a “menu” of options for disclosure orders, namely:
- an order dispensing with disclosure;
- an order that a party discloses documents on which it relies and (at the same time) makes a request for any specific disclosure it requires from another party;
- an order for disclosure on an issue by issue basis;
- an order for broader disclosure, which includes documents that enable a party to advance its own case or damage another’s case, or that lead to an enquiry with either of those consequences;
- standard disclosure; or
- any other order that the court considers appropriate.
If this menu works as intended, there will be a re-focussing (on a case by case basis) on the extent to which disclosure is necessary, and indeed whether disclosure is necessary at all. Parties will need to consider strategically which type of disclosure is most appropriate, and may need to be inventive, particularly given the broad scope of the last menu option. This could include, for example, giving the other side the “key to the warehouse”, thereby shifting the burden of searching and reviewing a potentially very large number of documents to the other side (subject to obtaining the appropriate protections regarding privileged and non-relevant confidential documents).
2. Disclosure report
The disclosure menu will need to be considered at an early stage in the proceedings, as 14 days before the first CMC, each party has a new obligation to file and serve a report, verified by a statement of truth, which:
- describes the documents that exist (or may exist) and are relevant (or may be relevant) to the case;
- states where, with whom and how such documents are stored;
- estimates the broad range of costs that could be involved if standard disclosure were to be ordered; and
- states which of the disclosure orders from the menu the party will be seeking.
This requirement emphasises the value of giving thorough consideration to disclosure as early as possible. For many, it will already be best practice to think about disclosure issues from the time at which litigation is contemplated, but this will now be a necessity if parties are to meet the new requirements.
3. Meeting between parties
Not less than seven days before the first CMC, the parties must discuss (in a meeting or by telephone) and seek to agree a disclosure proposal that meets the overriding objective (which now focuses on dealing with cases both justly and at proportionate cost). If parties are able to reach agreement and the court considers the proposal appropriate, the court can approve it without a hearing and give directions on that basis. The courts hope that parties will be able to present a proportionate and mutually satisfactory strategy for disclosure. The extent to which parties to litigation will in fact reach agreement remains unclear.
It is worth noting that CPR 31.5 also gives the court power to make directions at any time as to how disclosure is to be given, including in relation to the searches that are to be undertaken, the format in which documents are to be disclosed and whether disclosure should take place in stages.