Disclosure pilots to drive wholesale cultural change

Significant reforms to the rules on disclosure are to be piloted next year, following concerns the current regime is unmanageable.

A working group chaired by Lady Justice Gloster, Vice President of the Court of Appeal, Civil Division, launched proposals this week for a two-year pilot scheme, in the form of a Practice Direction, in the Business and Property Courts in the Rolls Building and in the centres of Bristol, Cardiff, Birmingham, Manchester, Leeds, Newcastle and Liverpool.

The working group was unanimous in its view that ‘wholesale cultural change’ is necessary, with completely new rules and guidelines on disclosure required.

It found that the system is geared towards paper rather than electronic documents. The volume of date has increased to often unmanageable proportions since the Civil Procedure Rules (CPR) came into force 18 years ago. Searches are often too wide and disclosure insufficiently focused, resulting in vast quantities of unnecessary data. Disputing parties often fail to discuss disclosure properly before the first claims management conference (CMC).

Moreover, although the Jackson reforms set out a broad menu of disclosure options, neither the profession nor the judiciary have made full use of these. Consequently, standard disclosure remains the default.

Sir Terence Etherton, Master of the Rolls, said: ‘It is imperative that our disclosure system is, and is seen to be, highly efficient and flexible, reflecting developments in technology.’

Under the proposals, there would be no automatic entitlement to search based disclosure and the court would only make an order for what is to be termed ‘extended disclosure’ if there has been full engagement between the parties before the CMC. What has been termed ‘standard disclosure’ would disappear. There would be sanctions for non-compliance.

Ed Crosse, president of the London Solicitors Litigation Association (LSLA) and partner at Simmons & Simmons, who helped draft the new rule, said: ‘Disclosure is one of the key benefits of litigating in London, and creating a world class civil disputes regime is critical to maintaining the Capital’s pre-eminence, particularly with Brexit fast-approaching and other centres competing to steal that crown.’

Businesses now store huge amounts of information electronically, which has a knock-on effect on disclosure when disputes go to court. In July, 72% of litigation practitioners surveyed by NLJ and the LSLA declared the current disclosure regime ‘not fit for purpose’.

The pilot will commence next year, subject to review and approval by the Civil Procedure Rules Committee in March/April 2018. The consultation on the draft Practice Direction closes on 28 February 2018.