NOTE THAT FOR CASES IN THE BUSINESS AND PROPERTY COURTS THE RULES DESCRIBED BELOW ARE SUPERSEDED BY THE DISCLOSURE PILOT WHICH COMMENCED IN JANUARY 2019. THE PILOT RULES CAN BE FOUND AT CPR PRACTICE DIRECTION 51U. 

What changed?

For all multi-track cases (other than personal injury / clinical negligence cases) the presumption in favour of standard disclosure was replaced with a “menu” of disclosure options, so that 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.

Why was the 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.

Note: Content up to date as at 10 June 2022

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