Disclosure

What changed?

For all multi-track cases where the first case management conference is held on or after 16 April 2013 (other than personal injury / clinical negligence cases) the presumption in favour of standard disclosure has been replaced with a “menu” of disclosure options. Standard disclosure is no longer the default position. Instead, the court must decide “having regard to the overriding objective and the need to limit disclosure to that which is necessary to deal with the case justly” which of the following orders to make:

  • to dispense with disclosure;
  • to disclose documents on which a party relies, and request any specific disclosure required from the opponent (similar to the approach often adopted in international arbitration);
  • to disclose documents on an issue by issue basis;
  • for disclosure on a “train of enquiry” basis (the old Peruvian Guano test);
  • for standard disclosure; or
  • any other order the court considers appropriate (which could include, in an example given by Lord Justice Jackson, an order that each side should, after removing privileged documents, simply hand over the “key to the warehouse” – ie provide all its documents for the opponent to review and choose which it wishes to use).

The court may at any point give directions as to how disclosure is to be given, including what searches are to be undertaken, whether lists of documents are required, in what format documents are to be disclosed and whether disclosure will take place in stages.

How was the change implemented?

The change was implemented by amendments to Civil Procedure Rule 31.5.

What do the new rules require?

At an early stage, two weeks before the first case management conference, parties have to file and serve a report, verified by a statement of truth, which describes briefly what documents exist that may be relevant to the matters in issue, where they may be located, estimates the broad range of costs that could be involved in giving standard disclosure, and states which directions relating to disclosure the party is seeking.

In cases where the Electronic Documents Questionnaire has been exchanged under Practice Direction 31B, this should be filed with the report.

Then, at least 7 days before the first case management conference, the parties must discuss and seek to agree proposals in relation to disclosure. The court may approve the parties’ proposals without a hearing, where appropriate.

Why was this change introduced?

"Standard disclosure", as introduced by the Civil Procedure Rules in 1999, means disclosing the documents which support or adversely affect any party's case. That approach was introduced by the Woolf reforms, as an attempt to control the amount of documentation that had to be reviewed and disclosed in litigation, and therefore reduce costs.

Standard disclosure is, in theory, narrower than the pre-1999 “discovery” obligation, which also included any documents which were broadly relevant, or which could lead to a “train of inquiry” that could produce relevant information – the so-called "Peruvian Guano" test named after a case from 1882.

In practice, however, it is not clear that standard disclosure led to a reduction in the cost of disclosure. The universe of documents still needed to be searched and reviewed, and it is at least arguable that a review to determine which documents fall within the narrower "standard disclosure" test is more time consuming and requires more thought (and possibly a more senior level of reviewer) than a review to determine which documents are broadly relevant. There was also the natural fear that if a party took a narrow approach to disclosure, it might be faced with specific disclosure applications and/or judicial criticism, as well as the risk of having to repeat the exercise if the issues changed to some degree. So in practice, parties often continued to disclose a broader category of documents than might strictly be required under the definition of standard disclosure.

Lord Justice Jackson described disclosure as one of the principal drivers of costs in larger actions. During his costs review, he considered a wide range of options, including (most dramatically) doing away with broad disclosure in favour of an approach similar to that often adopted in international arbitration, where the parties disclose the documents on which they rely, with the possibility of seeking specific disclosure of further documents. There was however a lot of resistance to that idea. It is well ingrained amongst English lawyers that the best way to achieve justice between the parties is for the court to have the full facts, which (it is thought) can only come from a broad disclosure regime. It is also said that the "thorough and probing" disclosure process, to use Lord Justice Jackson's words, is one of factors that attracts international commercial disputes to London.

In the end Lord Justice Jackson's recommendation, for larger cases, was to replace the presumption in favour of standard disclosure with a “menu” of disclosure options.

Has the change reduced costs?

The "menu" approach seeks to ensure that the court and the parties focus at an early stage on the extent of the disclosure required which, in our experience, is often key to controlling the costs of the disclosure exercise. It also allows the court the flexibility to choose the appropriate order for the case, rather than simply defaulting to standard disclosure.

Even where some option other than standard disclosure is selected, however, it does not necessarily follow that significant savings will be made. Very large volumes of documents may still have to be reviewed and disclosed in many large cases, even where there is a departure from standard disclosure.

Further, despite standard disclosure having ceased to be the default option from 1 April 2013, there is a general perception that it is still being adopted in most cases, and other options from the menu are chosen less often. Concerns continue to be expressed that disclosure is remains one of the main drivers of litigation costs, despite the reforms. A disclosure working group, chaired by Lady Justice Gloster, has been set up to address these concerns. It is not clear when the working group is expected to report.

What are the implications for commercial parties?

Parties must be able to give detailed information and proposals relating to disclosure, verified by a statement of truth, before the first case management conference. This means considering disclosure issues at a very early stage of the case.

For many clients and their advisers, getting to grips with the documents and considering disclosure issues right from the outset was best practice in any event, particularly where (as will be the case in almost any large commercial action) there are significant numbers of electronic documents. The menu approach therefore did not require a huge change of approach for commercial parties, but has made it all the more important to get organised early.

Parties also need to give thought to the likely costs of giving standard disclosure, as well as the costs of their preferred option from the disclosure "menu", and be ready to persuade the court why their preferred option is the most appropriate to the case.

Note: Content up to date as at 16 January 2017

Click here to return to the ”Handy client guide to the Jackson reforms” home page, or on the links below to access information on other Jackson topics: