New rules were recently approved by the Civil Procedure Rules (CPR) committee to change the way in which litigants disclose their documents. It is set to be a two-year pilot scheme in the business and property courts, beginning in January 2019 and if successful, is likely to lead to wider reforms on disclosure.
This announcement follows widespread concerns expressed by court users and lawyers about excessive costs, scale and sheer complexity of disclosure and the formation in May 2016 of a disclosure working group. The rules have been amended in an effort to clarify the provisions about disclosure of known adverse documents and on the procedure for withholding documents on grounds of privilege.
The use of tech-led solutions will certainly be increasing over the coming years. Fortunately, the courts are becoming more comfortable with technology and law firms need to adapt to the changes set to take place. London’s commercial and chancery courts, alongside those in Bristol, Birmingham, Cardiff, Leeds, Liverpool, Manchester and Newcastle, will be the first to experience the pilot.
Defects in the current disclosure regime:
- Since the CPR were introduced, the volume of data that is required to be disclosed has significantly increased to often unmanageable amounts.
- Standard disclosure which was originally announced in the CPR has unfortunately not reduced the volume of disclosure.
- Searches are unnecessarily wide and do not focus attention on key information – vast quantities of data are produced when more often than not only a small amount of this is actually relevant to the disclosure exercise and supports the party’s case.
- There is a lack of engagement between the parties in relation to disclosure.
- The existing rules are based on hard copy paper documents. In today’s world, they are the exception, with electronic documents taking their place as technology rapidly advances and use of document management software increases. The working group has announced the need for a cultural change.
Proposals and Solutions:
- There needs to be a duty on both the parties and their lawyers to cooperate and assist each other and the court over disclosure.
- Introduction of sanctions for non-compliance.
- Duty to refrain from providing unnecessary and irrelevant documents.
- Duty to consider the use of technology.
- Part 31 of the CPR (disclosure and inspection of documents) has been fully redrafted – the proposals introduce a new concept of basic disclosure, requiring the key documents, necessary for the other side to have an understanding of the case, to be provided, along with the parties’ statements of case.
- After close of statements of case, and before the case management conference (CMC), if the parties want to go beyond basic disclosure, they should be required to discuss and jointly complete a joint disclosure review document (DRD), which replaces the existing electronic disclosure questionnaire and disclosure report.
- The DRD requires the parties to list the main issues in the case which will need to be determined by reference to contemporaneous documents and exchange proposals for extended disclosure, selecting from a “menu” of options (there will be a “model of disclosure” for each issue – models A to E). The parties will also need to share information through the DRD as to how documents are stored and how they might, if required, be searched and reviewed. This will provide a way for parties to engage positively prior to the first CMC, hopefully agreeing a more efficient approach to disclosure.
- The graduated models for disclosure range from no order for disclosure at all (model A) to exceptional disclosure based on a train of enquiry (model E).
- Form H cost budgets in relation to disclosure should be completed after an order for disclosure has been made rather than before. By this time the parties should have a much better sense of what the actual costs are likely to be and saving a lot of time.
- Moving away from a paper-heavy approach and towards technology-assisted review techniques and the use of specialised document management software.
In today’s world, clients increasingly expect their lawyers to carry out their legal work efficiently and at reduced costs while maintaining the same level of service. If law firms are to meet these expectations, and run disclosure exercises efficiently, then embracing the use of litigation technology will be crucial.
It is important that law firms take note of the proposed changes and start thinking about how they are going to adapt in order to be fully compliant with the new rules.
For more information please contact the dispute resolution team.