Shake Up in Disclosure Rules

Posted on 16 May 2018

Shake Up in Disclosure Rules

Disclosure is a critical phase in litigation during which the parties provide documents to one another and the court that are relevant to the case. As the process has become increasingly time-consuming and expensive for parties, the judiciary is proposing a major overall to common practice.

What has happened?

In May 2016, a Disclosure Working Group was created in response to criticism from court users and legal professionals regarding the excessive costs, scale and complexity of disclosure.

The group found that disclosure in the electronic age was becoming unmanageable. They proposed significant changes to common practice and sought views on their proposals in a consultation which closed on 28 February 2018.

Responses are currently being considered and it is anticipated that a new scheme will be piloted across the Business and Property Courts later this year.

What is current practice?

The default approach is most often "standard disclosure" which requires parties to disclose documents that both support and adversely affect their case.

Parties are required to carry out a reasonable search for documents which are in their control. "Documents" has a wide meaning and includes communications such as WhatsApp messages. The meaning of "under one's control" is also incredibly wide as it includes documents which one has a legal right to possess such as  thoseheld by third parties, including accountants and trustees. The underlying principle is that the court can only adjudicate justly on a dispute if all the relevant material is out in the open.

However, particularly in light of the increased use of electronic communication, the obligations of standard disclosure has led to this stage in proceedings being one of the most costly and time consuming phases in a case.

What are the proposals?

The Working Group has therefore proposed that:

  • Standard disclosure should disappear in its current form.
  • A concept of "basic disclosure" should be introduced whereby key/limited documents which are relied on should be given at the outset of proceedings.
  • If the parties require disclosure in addition to or as an alternative to "basic disclosure" they must request an order for "extended disclosure".
  • The court will then decide what order to make and may make one of the following orders:
    • Model A: No order for disclosure.
    • Model B: Limited disclosure. This order requires parties to disclose documents which are adverse to their case but there is no need to carry out a search for such documents.
    • Model C: Request-led search based disclosure. This order requires parties to disclose particular named documents or classes of documents in response to requests from the opposing party.
    • Model D: Narrow search-based disclosure. This order is similar to dtandard disclosure.
    • Model E: Wide search-based disclosure. This order requires parties to disclose documents which are likely to support or undermine its own case or may lead to a train of inquiry. It is to be ordered in exceptional cases.

What is the potential impact on litigation?

While it is easy to understand the Working Group's ambition for change, there are concerns about the proposals.

  • Key documents may not come to light. Standard disclosure is a hugely important tool in resolving cases as the requirement to disclose documents which both harm and support one's case reveals documents which are often of important probative value and can lead to cases settling. 
  • It is foreseeable that significant amounts of time and costs could be spent arguing about the most appropriate order for disclosure.
  • The wording of the disclosure orders will need to be carefully considered. Any ambiguity is likely to lead to disagreements between parties as to what should be disclosed and whether obligations have been met.

Only time will tell whether the new proposed rules will achieve the Working Group's aim to reduce the costs of disclosure but what is clear is that lawyers and litigants have to be prepared for change in this area.

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