Standard disclosure is not the default option

At a disclosure lecture on 10 October 2016, Lord Justice Jackson called for parties to make more effective use of the disclosure menu of options set out in the Civil Procedure Rules (CPR) 31.5. In particular, he wanted parties to stop treating standard disclosure as the default option and review the full range of options before simply proposing or agreeing to "standard disclosure". He called on both parties and the courts proactively to challenge other parties who fail to do so. He also called for the courts to take a more robust and challenging case management approach to disclosure – and to make disclosure orders that are consistent with the approved or agreed budgets.

There have been a number of decisions on disclosure issues since and there is evidence that the courts are rising to Jackson LJ's clarion call.

It is not enough to list privileged documents in Part B of a list of documents generically

In Astex Therapeutics Ltd v. AstraZeneca [2016] EWHC 2759 (Ch), the court ordered the party claiming that documents were privileged to serve a witness statement by one of its proper officers explaining the claim. The statement had to list "the documents over which privilege is now claimed, taking account of the limited nature of legal advice privilege, and the date when each document was created", what type of privilege was being claimed and how the claim had arisen.