Progress toward disclosure "menu"

In our September update on the Jackson reforms (Jackson reforms: taking stock) we reported that a sub-committee of the Civil Procedure Rule Committee had been appointed to take forward Lord Justice Jackson's proposal for a “menu” of disclosure options for substantial cases. A draft rule is currently before the Committee and we understand it is likely to be finalised this month, although its implementation will be held over until the date on which the majority of new provisions and amendments relating to the Jackson reforms are brought into force (anticipated for October 2012).

Under the proposal, "standard disclosure" will no longer be the default position. Before the first case management conference, parties will have to file and serve a report, verified by a statement of truth, which describes in broad terms what documents exist, where and how they are stored, and the costs that could be involved in giving standard disclosure. These reports will be used to assist the parties, and the court, to determine the appropriate order for disclosure, which could range from dispensing with disclosure, at one extreme, to full pre-CPR Peruvian Guano or "train of enquiry" disclosure at the other.  

The new rule will apply in all multi-track cases other than personal injury  /clinical negligence cases. The recommendation in Lord Justice Jackson's final report was that the menu approach should apply in "substantial" cases - broadly those in the Commercial Court or where the amount in dispute was over £1 million. However, the Committee has decided that the rule should apply more widely. We will provide a further update once a final version of the new rule is available.