Controlling the costs of disclosure: "menu" option approved

In a recent post we reported that the Civil Procedure Rule Committee was expected to approve a draft rule to implement Lord Justice Jackson's proposal for a “menu” of disclosure options by the end of November. The rule has now been finalised and the full text has been published in Lord Justice Jackson's lecture on "Controlling the costs of disclosure" (the seventh in his series of lectures in the implementation programme for his civil litigation costs review). It will apply in all multi-track cases other than personal injury /clinical negligence cases, but will not take effect until the so-called "big bang" implementation date for the majority of the Jackson reforms (planned for October 2012, though that date is generally recognised as ambitious).

The new rule

Under the new rule 31.5, there will no longer be a presumption in favour of standard disclosure. Instead, the court must decide "having regard to the overriding objective and the need to limit disclosure to that which is necessary to deal with the case justly" which of the following orders to make:

• to dispense with disclosure;
• to disclose documents on which a party relies, and request any specific disclosure required from the opponent;
• to disclose documents on an issue by issue basis;
• for disclosure on a "train of enquiry" basis (the old Peruvian Guano test);
• for standard disclosure; or
• any other order the court considers appropriate.

The court may at any point give directions as to how disclosure is to be given, including what searches are to be undertaken, whether lists of documents are required, in what format documents are to be disclosed and whether disclosure will take place in stages.

To assist with this process, two weeks before the first case management conference parties will have to file and serve a report, verified by a statement of truth, which describes briefly what documents exist, describes where they are located (and in the case of electronic documents how they are stored), estimates the broad range of costs that could be involved in giving standard disclosure, and states which directions relating to disclosure the party is seeking.

Then, at least 7 days before the first case management conference, the parties must discuss and seek to agree proposals in relation to disclosure. The court may approve the parties' proposals without a hearing, where appropriate.

In his lecture, Lord Justice Jackson comments that one possible order that could be made (under the heading of "any other order the court considers appropriate") is that each side should, after removing privileged documents, simply hand over the "key to the warehouse" - i.e. provide all its documents for the opponent to review and choose which it wishes to use. Lord Justice Jackson describes this as the opposite of standard disclosure, under which each party reviews its own documents and must disclose those that it believes will help the other side, and says he is aware of a recent case in which such an order was made by the Technology and Construction Court.

Comment

We have long supported the proposal for a "menu" approach to disclosure in larger cases. Two of our partners (Ted Greeno and Gary Milner-Moore) were on Lord Justice Jackson's working party which prepared the initial draft of the new rule. This approach seeks to ensure that the court and the parties focus at an early stage on the extent of the disclosure required which, in our experience, is often key to controlling the costs of the disclosure exercise. It also allows the court the flexibility to choose the appropriate order for the case, rather than simply defaulting to standard disclosure.

Lord Justice Jackson's reference to the "key to the warehouse" option illustrates that the new rule could encompass a whole host of novel approaches to the disclosure exercise. Whilst that is a fairly extreme example, which seems unlikely to become widespread, there may be cases in which it would be appropriate. All will depend on the circumstances of the individual case.

Lord Justice Jackson points out that the new disclosure rule is part of a package of case management reforms, one theme of which is that the first case management conference should be "a real event at which the court takes hold of the case and gives directions which will focus the factual evidence, the expert evidence and the disclosed documents on the real issues between the parties". We will have to wait until the implementation of the reforms, in about a year's time, to see how the new approach works in practice.