Working group proposes pilot of new rules for disclosure

A disclosure working group set up last year, chaired by Lady Justice Gloster, yesterday published its proposals for reforms to the rules governing disclosure of documents in English litigation. The proposals are subject to consultation with a view to setting up a two-year pilot in the Business and Property Courts, in London and elsewhere. Comments on the proposals are requested by 28 February 2018, after which the proposals will be considered by the Civil Procedure Rule Committee.

The working group was set up in light of concerns that the changes to the disclosure process introduced by the Jackson reforms in April 2013 were not achieving their aims. Those reforms removed the previous presumption in favour of "standard disclosure" (ie documents that support or adversely affect any party's case) and introduced a "menu” of disclosure options from which the court must choose “having regard to the overriding objective and the need to limit disclosure to that which is necessary to deal with the case justly”. However, despite those reforms, there is a general perception that standard disclosure is still being adopted in most cases, and that disclosure remains one of the main drivers of litigation costs.

Under the new proposals, in broad summary, the current  disclosure "menu" would be replaced by a new list of "models". Although it's fair to say the list of models does not look dramatically different from the current menu, the proposed rules contain clear signs steering the parties, and the court, toward a more restrained approach to disclosure. These include that the court will only make an order that one of the disclosure models should apply where it is persuaded that it is appropriate to do so in order fairly to resolve one or more of the Issues for Disclosure (which are to be agreed between the parties before the first case management conference). Although one of the models, Model D, is roughly equivalent to standard disclosure, that term is not used - presumably to remove the suggestion that there is anything "standard" about this option.

The proposed rules contain an express duty to disclose documents a party is aware of which are adverse to its case (unless they are privileged), regardless of any order for disclosure. There is also an express duty to refrain from providing irrelevant documents.

The draft rules also provide that where a party wishes to claim a right or duty to withhold a document, or part of a document, or a class of documents (eg on grounds of privilege), it must describe the document (or part or class) and explain "with reasonable precision" the grounds upon which the right or duty is being exercised. It is not clear whether this is intended to signal any change in the current practice of describing privileged documents in generic terms.

The proposals are outlined in more detail below.

Basic Disclosure

Under the proposals, when serving their particulars of claim or defence, parties would give "Basic Disclosure" of key documents relied on by the disclosing party and key documents necessary for other parties to understand the case they have to meet. This obligation could however be dispensed with by agreement, and it would not apply where a party concluded that it would involve providing more than 500 pages of documentation. It seems likely, therefore, that Basic Disclosure will not be a common occurrence in major commercial cases.

Extended Disclosure

At the same time, the parties would have to state, by letter, whether or not they are likely to request so-called "Extended Disclosure" (apart from under Model A - see below), ie disclosure going beyond Basic Disclosure. If so, then before the first Case Management Conference (CMC) the parties must seek to agree a draft List of Issues for Disclosure, which is intended to provide "a fair and balanced summary of the key areas of dispute identified by the parties' statements of case and in respect of which it is likely that one or other of the parties will be seeking Extended Disclosure".

Extended Disclosure "may" take the form of one or more of the Disclosure Models set out in the draft rules, which are:

• Model A - No order for disclosure
• Model B - Limited disclosure. This is essentially Basic Disclosure, plus known adverse documents, in accordance with the duty referred to above. There is no obligation to carry out a search for documents.
• Model C - Request-led search-based disclosure. This is an order to disclose particular documents or narrow classes of documents in response to requests from the opposing party (similar to the approach often adopted in international arbitration). The obligation to disclose known adverse documents would also apply.
• Model D - Narrow search-based disclosure, with or without "narrative documents". This is broadly equivalent to standard disclosure. Narrative documents, defined as those which are relevant only to the background or context of material facts or events, would only be disclosed if specifically stated in the order.
• Model E - Wide search-based disclosure. This is essentially old-fashioned Peruvian Guano, or train of enquiry, disclosure, which would only be ordered in an exceptional case.

Disclosure Review Document

Before the first CMC, parties would complete a "Disclosure Review Document" (DRD), which would replace the current Electronic Documents Questionnaire. The DRD would: (i) set out the List of Issues for Disclosure, referred to above; (ii) set out proposals for the appropriate model for Extended Disclosure; and (iii) share information about how documents are stored and how they might be searched and reviewed.

The order for disclosure

At the first CMC, the court would consider by reference to the DRD which of the Extended Disclosure models should apply to which issue (or to all issues).

The court would only order Extended Disclosure if persuaded that it is appropriate to do so in order fairly to resolve one of more of the Issues for Disclosure. An order for Extended Disclosure would have to be reasonable and proportionate having regard to the overriding objective and certain factors set out, including the nature and complexity of the issues, the importance of the case, the likelihood of the existence of documents with probative value, the number of documents, the ease and expense of their retrieval, the financial position of each party and the need to ensure the case is dealt with expeditiously, fairly and at a proportionate cost.

Where the chosen model required searches to be undertaken, the parties would have to discuss and seek to agree, and the court could give directions, on limiting the scope of the searches and the use of technology assisted review software and techniques.

Disclosure Guidance Hearing

There are also provisions allowing the parties to "seek guidance from the court by way of a discussion with the court" at a Disclosure Guidance Hearing of up to 30 minutes, either before or after a CMC. Such guidance could concern the scope of Extended Disclosure or the implementation of an order for Extended Disclosure.

Duties in relation to disclosure

The proposed rules set out express duties that would apply in relation to disclosure. Both the parties and their legal advisers would be under duties, for example, to take reasonable steps to preserve documents in their control that might be relevant to the claim and to "act honestly in relation to the process of giving disclosure and reviewing documents disclosed by the other party".

As set out above, the parties would have duties to disclose known adverse documents and to refrain from providing irrelevant documents. Legal advisers would have express duties to take all reasonable steps to assist and cause the party to comply with its disclosure duties, to liaise with their opposite numbers to promote the reliable, efficient and cost-effective conduct of disclosure, and to undertake a review to satisfy themselves that any claim to privilege is properly made and its basis sufficiently explained.