A new e-disclosure practice direction (PD) and accompanying questionnaire are being prepared for approval by the Civil Procedure Rule Committee (CPRC). The new PD has developed out of a concern that the existing provisions relating to e-disclosure (at paragraph 2A of existing PD31) are not effective in forcing parties to litigation, and their lawyers, to address e-disclosure issues properly at the outset of the case, as illustrated by a number of recent cases summarised in our e-bulletin of 30 November 2009.

A draft of the PD has been under preparation for some time by a working party chaired by Senior Master Whitaker. The PD was originally expected to be introduced in October 2009 and then again in April, but debate within the CPRC has led to a number of revisions. The draft PD had initially required parties to complete the detailed e-disclosure questionnaire, supported by a statement of truth, at a very early stage in all multi-track cases. A revised draft made this subject to a direction of the court or agreement between all parties, but concerns were still expressed by some members of the CPRC that the proposed approach was over-prescriptive and too lengthy for the majority of cases. This led to the appointment of a further working group, led by Mr Justice Coulson, to consider and consult on whether detailed rules were needed at all and, if so, in what form they should be provided.

The report of Coulson J's working group, which was presented to the CPRC in April, has this week been made publicly available. The report concludes that there is a need for detailed rules on e-disclosure and that these should be contained in a new PD. However, the emphasis in the PD should be on getting the parties to agree the scope and extent of e-disclosure, using the questionnaire as a prompt or checklist where appropriate. Save in exceptional cases, the court should only become involved if the parties fail to reach agreement, in which case it may order one or both parties to fill in all or part of the questionnaire. The report further states that the use of the new PD should be monitored to ensure that it saves costs and does not increase them.

The draft PD is now being revised to incorporate these conclusions. It is not clear whether the PD will be finalised in time for the next round of CPR amendments in October this year. If not, it is likely that it will be introduced in April 2011.