Following Jackson LJ's Final Report (published in December
2009), a new Practice Direction 31B to the Civil Procedure
Rules was introduced in October 2010, aimed at streamlining the
disclosure process by obliging the parties to consider, discuss and
agree where possible at an early stage how electronic disclosure
should be carried out. Jackson LJ's Final Report also
recommended further changes that have not yet been implemented,
including the introduction of a menu to give the courts the option
of moving away from the existing standard disclosure obligations to
more tailored obligations.
Civil Procedure Rule 31 contains the existing
standard disclosure obligation, which is to disclose only the
documents on which a party relies, and the documents which either
adversely affect his own case; adversely affect another party's
case; or support another party's case.
Further amendments are now planned to CPR 31 so as to introduce a
non-exhaustive menu of options for the court to choose from when
deciding how the parties should deal with disclosure. These options
are currently drafted as follows:
- an order dispensing with disclosure;
- an order that a party disclose the documents on which it relies, and at the same time request any specific disclosure it requires from any other party;
- an order that directs, where practicable, the disclosure to be given by each party on an issue by issue basis;
- an order that each party disclose any documents which it is reasonable to suppose may contain information which enables that party to advance its own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences;
- an order that a party give standard disclosure;
- any other order in relation to disclosure that the court considers appropriate.
Jackson LJ suggested in his speech that the court
could use its discretion under the final menu option to order that
each side give the other the "key to the warehouse" so
that each party can choose how to go about reviewing and selecting
the documents that it wishes to use at trial.
Parties may be worried that the gathering together of a potentially
large number of documents and handing them over to the other side
could have the opposite effect to that intended, particularly as
without further guidance from the courts the party providing
disclosure may lose all control over how the document review
exercise is conducted and the related costs incurred by the other
side. However, such an option would only be chosen by the court if
it is satisfied that it would result in a costs saving and is just
one idea aimed at promoting flexibility within the disclosure
process. The idea is for the court to take into account the
overriding objective of the CPR and limit disclosure to that which
is necessary to justly deal with the case.
One option could be that the "warehouse"
is a virtual one, hosted by one of the many electronic document
management systems currently available. In line with the existing
procedure in relation to e-disclosure, the parties could seek to
agree an approach to both the provision and searching of documents
so as to keep the costs at a reasonable level. Jackson LJ commented
in his speech on the use of consultants whose document management
and forensic analysis services in this field are becoming
increasingly invaluable. Jackson LJ highlighted that close liaison
between the legal team and any consultants employed was essential,
as although such consultants are software experts, it will be the
legal team who best understand the case at hand. This serves as a
warning to those tempted to completely outsource the disclosure
process, particularly as any decisions made may have to be
justified to the court by those nominally in charge of the
disclosure exercise.
These specific proposals would require a simple rule change rather
than primary legislation and therefore do not form part of the Bill
currently before Parliament that deals with other Jackson-led
reforms. It is intended that any rule changes (as agreed by the
Civil Procedure Rule Committee) will come into force on the same
date as any new legislation, which is unlikely to be before October
2012. If the courts do decide to adopt this more creative approach,
it is likely that further guidance will be needed so as to assist
Judges and the parties to proceedings in considering how to gather
and organise the documents in the "warehouse"; how best
to protect themselves against any accidental waivers of privilege
or confidentiality, and how best to ensure that the lack of control
suffered by the party providing disclosure is tempered, if
necessary by seeking further directions from the court.
Both the existing rules and the proposed changes relating to disclosure are likely to have a significant impact on how a case is run from the outset. Such measures also emphasise the importance of having an existing rigorous document management structure in place, so that details can be provided and informed decisions made at an early stage in proceedings about how disclosure should be conducted.
For the full speech, please click here.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 05/12/2011.
