27/06/2018
Since the current disclosure process was first introduced by the Civil Procedure Rules over 18 years ago, the use of technology and volume of data produced by businesses has increased to the point where the current procedure is no longer fit for purpose. Searching for and reviewing disclosable documents is a burdensome and an expensive aspect of English litigation, with parties often expending huge amounts of time and costs processing and reviewing vast amounts of data which has been ‘dumped’ on them by the other side, the majority of which is irrelevant to the case. A proposed reform of the rules for disclosure aims to encourage a wholesale cultural change in the process and, in turn, reduce the cost, scope and complexity of disclosure.
An outdated regime
In addition to the issue of irrelevant disclosure, a disclosure working group (DWG) identified a number of other problems with the current regime, including the fact that standard disclosure is too often agreed as the default option without considering the merits of alternative disclosure orders. They noted that parties also fail to adequately engage with the issue of disclosure before the first Case Management Conference, meaning that searches can be far wider than necessary. The DWG determined that the current regime, which was conceptually based on paper disclosure, fails to embrace advances in technology and new software tools available to assist with the process.
The DWG have proposed a new practice direction and Disclosure Review Document (DRD) in which parties must identify issues relating specifically to disclosure rather than the issues to be determined in the claim. Following a period of wider consultation, final approval of the Practice Direction is expected to be given on 13 July 2018 with a mandatory disclosure pilot scheme to commence in the Business and Property Courts in London and the regions on 1 January 2019.
Increased duties on parties and their legal advisers
The redrafted practice direction is expected to impose more onerous duties on parties and their legal representatives involved in litigation. These include a duty to cooperate with each other and promote the efficient conduct of disclosure, using technology as appropriate. Parties must also act honestly in giving disclosure and refrain from providing documents to another party that have no relevance to the disclosure issues in a claim.
Once litigation is contemplated, parties will continue to have a duty to preserve documents, including documents which might otherwise be deleted or destroyed, and will now be required to send a written notification to all relevant employees setting out the steps they must follow to preserve documents. Written confirmation must be given to the court confirming that reasonable steps have been taken to preserve relevant documents.
Regardless of the scope of disclosure ordered by the court, and even if no disclosure is ordered, parties will still have a core duty to disclose known documents that are adverse to their case.
The end of standard disclosure?
There will no longer be an automatic entitlement to search based disclosure. The redrafted practice direction instead proposes ‘basic disclosure’ to be given with statements of case, comprising limited key documents relied on by a party or necessary for other parties to understand the case they have to meet.
If a party then seeks disclosure of documents in addition to basic disclosure, they must make a request for ‘extended disclosure’ and persuade the court that it is appropriate to order one of five new disclosure models which range from no disclosure through to extended disclosure of documents that may lead to a train of inquiry.
Encouraging the use of new technology
Where the selected disclosure model does require a search for documents, parties must discuss and seek to agree the scope of the searches to be completed. Technology assisted review software and techniques are available and must be considered as a matter of course. The court in its order may also require the use of specified software tools such as data sampling and deduplication software.
Comment
Effective reform of the disclosure process could be key to controlling spiralling litigation costs but the success of the new rules and whether they can bring about a change in culture will depend on the extent to which legal practitioners, their clients and the judiciary support such a change. Parties will need to consider with their solicitors why certain categories of documents are needed and encourage employees to embrace the new culture, ensuring they comply with their duties to preserve documents. With similar reforms being considered in the criminal courts and judges receiving training on the new regime which they will be keen to try out, parties litigating outside of the Business and Property Courts should not expect to relax for long.
