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Success of court disclosure reforms requires 'cultural change'

Out-Law News | 08 Aug 2018 | 10:39 am | 3 min. read

Plans to overhaul document disclosure in the courts in England and Wales have been approved by the Civil Procedure Rule Committee (CPRC).

The scheme, which was developed by a working group commissioned by then-High Court chancellor Sir Terence Etherton, will run as a mandatory pilot for an initial two-year period for almost all cases in the Business and Property Courts (BPC), beginning 1 January 2019. Depending on the success of the pilot, the scheme could then be extended to proceedings outside the BPC.

Commercial litigation expert Richard Dickman of Pinsent Masons, the law firm behind Out-Law.com, who sat on the working group, said that the scheme was "the most significant shake-up of disclosure since the introduction of the Civil Procedure Rules (CPRs) 20 years ago".

"The length and extent of the pilot also make it difficult to undo the changes if they are not successful, particularly in reducing the costs and burdens of disclosure," he said.

"The CPRC has made a number of helpful drafting improvements to address some of the more controversial provisions in the draft Practice Direction. However, drafting can only go so far. Key elements of the new rule – in particular, the menu of disclosure options – are already available under the existing rule, but rarely used. The success of the pilot will ultimately depend on a cultural shift among parties, solicitors, counsel and, above all, the judiciary. Whether there is the will - and, in the case of the judiciary, the resources - to bring about that cultural change remains to be seen," he said.

The new scheme does away with the current assumption of 'standard' disclosure as a default. The extent of disclosure allowed will instead depend on the issues, although there will be a continuing duty to disclose 'adverse' documents that damage the disclosing party's position or support the opposing party's position. The starting point is that 'initial' disclosure will be given in all cases, followed by one of five forms of 'extended' disclosure where appropriate.

Initial disclosure will be limited to around 1,000 pages or 200 documents, although the parties may agree to a higher figure as long as this is reasonable. Initial disclosure is not intended to be onerous, and will not necessarily involve a search. The duties of the parties in relation to disclosure are expressly set out in a new practice direction (26-page / 153KB PDF), and include a duty to cooperate so as to promote the reliable, efficient and cost-effective conduct of disclosure; as well as a duty to disclose known adverse documents in all cases, irrespective of whether an order to do so is made.

After closure of statements of case, and before the case management conference, the parties will be required to agree on a joint disclosure review document (DRD). As part of this, they will be required to put forward their proposals for extended disclosure from a 'menu' of five available options; and to share information about how any documents are stored and how they might be searched and reviewed if required, including with the assistance of technology. The court will then decide whether to make an order for extended disclosure, based on the well-recognised test of reasonableness and proportionality as well as defined criteria set out in the practice direction.

Parties will be required to give estimates of the likely costs of disclosure when filing their completed DRD in order for the courts to consider the question of proportionality. The practice direction also specifies a range of orders and sanctions that the courts will be entitled to make for non-compliance, both with the requirements of the new scheme and the new duties on the parties and their advisers.

The practice direction also expands on the wording around technology assisted review (TAR) contained in last year's draft, making clear that this is not limited to predictive coding. It also contains more details of the discussions that parties will be required to have around the use of TAR, which are mandatory. Parties will have to justify any decision not to use TAR, particularly where disclosure involves 50,000 documents or more.

The new rules and practice direction must now receive ministerial approval, expected in the autumn, before they can take effect. Members of the disclosure working group will then host a series of national and regional 'roadshows' on the new scheme, before the pilot begins on 1 January 2019. The pilot will "not generally disturb an order for disclosure made before" the commencement date, according to the CPRC.

Master of the Rolls Sir Terence Etherton described the new disclosure scheme as "an entirely new and innovative set of rules for disclosure" which should "promote a significant change in culture and approach to what is a key element of civil proceedings in England and Wales" if fully embraced by participants.

"It is imperative that our disclosure system is, and is seen to be, highly efficient and flexible, reflecting developments in technology," he said. "Having effective and proportionate rules for disclosure is a key attraction of English law and English dispute resolution in international markets."