Lawyers have been urged to make their views known on proposals to introduce major reforms to disclosure, ahead of a potential pilot in the Business and Property Courts
Responses to a draft Practice Direction that would radically alter the current rules on disclosure in CPR Part 31 must be made by 28 February 2018.
Speaking at a London Solicitors Litigation Association (LSLA) event last week, Ed Crosse, LSLA president and partner at Simmons & Simmons, explained the reforms have been drafted by a working group chaired by Lady Justice Gloster, amid ‘concerns about the escalating cost of disclosure and worries that the UK was at risk of losing its reputation as a competitive jurisdiction’.
‘Simply amending the rule wasn’t going to work; it became clear that a new rule is needed with express duties on parties and their advisers to co-operate and engage with each other in order to manage disclosure more efficiently” said Crosse.
The panel, which included the Hon Mr Justice Knowles and Chief Master Marsh spoke about other aspects of the reforms, including the availability of disclosure guidance hearings to facilitate discussions about disclosure where parties reach an impasse in their discussions, a replacement EDQ (electronic documents questionnaire) called the ‘disclosure review document' and a new menu of options for disclosure, containing clearer guidance on what is expected.
Sir Robin Knowles said: ‘We need the profession to embrace these changes, not least because the amount of data available to disclosure continues to grow exponentially. Another potential positive is that the new regime may drive down the cost of new technology.’
Lady Justice Gloster’s working group identified that searches are often too wide and disclosure insufficiently focused, resulting in the production of vast quantities of unnecessary data. One problem is the current system is geared towards paper rather than electronic documents, and the volume of data has increased to ‘unmanageable’ amounts. Moreover, disputing parties often fail to engage sufficiently (or at all) before the first case management conference and, despite a range of disclosure options being introduced by the Jackson reforms, standard disclosure remains the default.
Sir Robin explained that ‘adopting a more nuanced approach to disclosure is crucial to make sure the UK remains a competitive jurisdiction’.
Sir Robin, Master Marsh and Ed Crosse, were three of the members of the working group responsible for drafting the proposals. The proposed reforms are expected to be piloted across the Business and Property Courts in England and Wales.
LSLA members are encouraged to provide feedback via the Association as soon as possible. Comments can also be made, or further information sought, at: www.judiciary.gov.uk/.
(Pictured L – R: Ed Crosse, partner, Simmons & Simmons, and President of the London Solicitors Litigation Association (LSLA); Caroline Field, partner, Fox & Partners and Committee Members of the LSLA; Chief Master Marsh – High Court, Chancery Division; and London; and the Hon Mr Justice Knowles CBE – Commercial Court, London.)
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