The CPR relating to disclosure may be about to be subject to a radical change.
While the disclosure of documents is part of what makes litigation in England attractive, ensuring a 'cards on the table' approach and general fair play, in the era of electronic communication, standard disclosure can often represent an extraordinary burden on the parties to English litigation and the costs and time taken on disclosure exercises risk pushing parties to select alternative forms of dispute resolution.
In an attempt to meet the concerns of users of the English civil courts and to ensure that the disclosure exercise is proportionate in extent, complexity and cost to what is at stake, the judiciary has published proposed new rules in the form of a draft Practice Direction, as well as a guidance note and other material, all of which can be accessed here.
Limited consultation has taken place already, but all court users' views are sought now, in advance of the rules being finalised and introduced in a pilot scheme due to commence in the spring or summer of 2018 and to run for two years. We understand that participation in the pilot scheme will be mandatory in the Business and Property Courts in the Rolls Building in London and in some other cities, with limited exceptions.
The deadline for comments on the proposals is 28 February 2018. DLA Piper will be speaking to our clients and incorporating their views into the submissions we make before that date. If you would like to contribute to this process, or discuss the proposals with us, please contact Giles Hutt.
The main points to note about the proposals are:
- In most cases parties will initially give what is termed "Basic Disclosure", which means disclosing with their statements of case the documents they wish to rely on and any other documents needed for the other parties to understand the case against them. This is a modest extension of the existing requirement to disclose contractual and other key documentation before and at the time that proceedings commence (paras 6 and 7 respectively of the Practice Directions on Pre-Action Conduct and Statements of Case)
- The existing menu of disclosure options in CPR 31.5(7) is replaced by a series of "Models", which may be chosen on an issue by issue basis and which are collectively termed "Extended Disclosure". These Models range from no disclosure, through arbitration-style and what is now termed "Standard Disclosure" (CPR 31.6), to the more thorough "train of enquiry" disclosure that was the norm in England until the introduction of the Civil Procedure Rules in 1999
- Although Standard Disclosure is one of the Models on offer, it is emphatically not the default one. In fact, any Model will have to be argued for at the Case Management Conference, whether or not it is agreed between the parties
- To help identify the issues at stake and the Model(s) appropriate to each case, parties will be obliged jointly to fill in a new "Disclosure Review Document", which replaces the current (optional) Electronic Disclosure Questionnaire
- Whatever Model(s) are ordered, parties will be obliged in all cases to disclose documents that are harmful to their case, but only when known to be (currently or formerly) in their control and known to be harmful (paragraph 3.1(2) of the draft Practice Direction). Not all the Models require the parties to make a search of any kind
This last aspect of the proposals is controversial, but not entirely new. It was widely criticised when adopted by the Flexible Trials Pilot Scheme, which is still running in the Rolls Building. However, that scheme is optional and hardly, if ever, used. The problem with the idea of being obliged to disclose but not search for harmful documents is, of course, that parties might be tempted to turn a blind eye to them when they are uncovered, and to keep searches to a minimum to minimise the risk of this happening. However, the obligation does at least seek to preserve a key aspect of fair play, differentiating the procedure of the English courts from that of many of their competitors.
However the reforms are implemented, they will certainly make a radical difference to the character (and hopefully cost) of civil litigation in the English courts.