Disclosure rules set for overhaul to cut costs and complexity

Out-Law News | 06 Nov 2017 | 2:43 pm | 2 min. read

A working group set up by the judiciary has proposed a “wholesale cultural change” to the current disclosure regime in the English and Welsh civil court system.

The working group spent 18 months investigating concerns raised by in-house lawyers and other court users over the “excessive costs, scale and complexity of disclosure”, and has proposed a pilot scheme (4 page / 311KB PDF) designed to reinvent the disclosure process for the 21st century.

Working group member and litigation expert Richard Dickman of Pinsent Masons, the law firm behind Out-Law.com, said the group had realised early on that the civil procedure rule (CPR) governing disclosure needed to be completely rewritten rather than “tweaked” in order to bring disclosure up to date.

The working group's proposals will see the current term 'standard disclosure' vanish. Instead, in the majority of cases, 'basic disclosure' of key documents will be given with statements of case. A search will not be required.

Before the case management conference parties in a dispute will be required to discuss and jointly complete a disclosure review document (19 page / 376 KB PDF), which would replace the current electronic disclosure questionnaire. This document is intended to provide a mandatory framework for parties and their advisers to co-operate and engage prior to the first case management conference with a view to agreeing a proportionate and efficient approach to disclosure.

At the case management conference the court will decide which of five 'extended disclosure' models  will apply to which issue. The models range from no further disclosure to the widest form of disclosure.

According to the judiciary, the “fundamental yardstick for the parties and the court, throughout, should be what is appropriate in order fairly to resolve the issues in the case. The well-recognised test of reasonableness and proportionality will be applied by reference to defined criteria in the Practice Direction, which are relevant to disclosure.”

“One of the big elements of cultural change will be doing away with the assumption that standard disclosure is the default option,” said Dickman.

Dickman said the proposed changes would lead to a change in the way disclosure was carried out, with less manpower required by junior lawyers or paralegals.

“What's going to be needed if this approach is going to work is much more engagement by lawyers and by clients at a much more senior level,” Dickman said. “They'll have to apply their minds as to what's required in relation to a particular issue. There could be an element of front-loading of costs and a change in the profile of costs. Whether the proposed changes reduce the overall burden of disclosure remains to be seen.”

Dickman said judges and masters would need to make sometimes difficult decisions about disclosure much earlier in a case than is currently required.

The proposed scheme is expected to be submitted to the Civil Procedure Rules Committee for approval in March or April and a two-year pilot in the Business and Property Courts in the Rolls Building and in Bristol, Cardiff, Birmingham, Manchester, Leeds, Newcastle and Liverpool will begin soon afterwards.