Disclosure reforms ready to go

Parties to commercial litigation must disclose all ‘smoking guns’ under draft disclosure rules due to be piloted in the Business and Property Courts in January.

The Civil Procedure Rule Committee approved the draft rules this month and is likely to finalise its approval when it meets again in July. The draft rules, first published in November by a disclosure working group of judges and senior litigators, have been fine-tuned to take account of feedback from a three-month, 26-event roadshow.

A menu of five options on disclosure (A-E) would replace the current regime, with parties required to disclose all ‘known adverse documents’ (or ‘smoking guns’) as a minimum. The options then range through: ‘only those documents they are relying on plus known adverse documents’; ‘request-led’ disclosure for particular documents; ‘search-based’ disclosure for documents relating to issues; to ‘documents that may lead to a train of enquiry’—the broadest possible form of disclosure, often used in complex fraud cases where detective work is involved.

The draft rules introduce a clear duty on both parties and their advisers to engage with each other over what will be disclosed—currently, there is no obligation to do this. Judges would be expected to manage cases more closely and may give directions to reduce the burden and cost of disclosure.

Ed Crosse, disclosure working group member, partner at Simmons & Simmons and former London Solicitors Litigators Association (LSLA) president, said: ‘This provides a framework for bringing about a change in litigation culture both by parties and judges.

‘The rules can only achieve so much, and the profession will need to embrace this to bring about change. The alternative is that our processes will become less attractive for international parties, who will vote with their feet. Our courts need to stay competitive, particularly in light of the uncertainties of Brexit.’

The working group was set up in response to concerns over unmanageable volumes of evidence. A 2017 survey by NLJ and the LSLA found that the current menu of disclosure is rarely used, while 70% said the burden and costs of disclosure were not being effectively controlled.