Two-year pilot of new disclosure rules to commence 1 January 2019

New rules to govern disclosure of documents in litigation before the English courts were unveiled yesterday, having been approved by the Civil Procedure Rule Committee on 13 July. The rules will be subject to a two-year pilot in the Business and Property Courts which (subject to Ministerial consent) will commence on 1 January 2019. The pilot will be limited to the Business and Property Courts but it is expected that, if it is a success, it will lead to wider reforms to disclosure. The pilot will affect both new and existing proceedings, but it will not affect orders for disclosure made before the commencement date (unless those orders are varied or set aside).

The new rules follow on from proposals published last November by a working group chaired by Lady Justice Gloster (see our summary of the proposals here) which were subject to consultation until the end of February this year. The approved version of the rules is broadly similar to the proposals made last November, but with a number of revisions in light of feedback received during the consultation.

Perhaps most significantly, the rules have been amended in an effort to clarify the provisions relating to disclosure of known adverse documents and to the procedure for withholding documents on grounds of privilege.

Known adverse documents

As noted in our previous blog post linked above, the proposed rules as published last November contained an express duty to disclose documents a party "knows to be or to have been in its control and adverse to its case" (unless privileged), regardless of any order for disclosure. A number of respondents to the consultation (including ourselves) pointed out that this could cause difficulties where the disclosing party is a large corporate or other organisation, due to uncertainties for example as to whose knowledge is relevant and when that knowledge is to be assessed (for example if a key custodian knew of an adverse document when it was created but forgot about it in the intervening period).

The revised version seeks to define more precisely the requirement to disclose "known adverse documents”, clarifying that:

• It applies only to documents a party is actually aware of, without undertaking any further search for documents.
• For a company or organisation, the relevant awareness is that of "any person with accountability or responsibility ... for the events or the circumstances which are the subject of the case, or for the conduct of the proceedings".
• For this purpose it must take reasonable steps to check the position with anyone who had such accountability or responsibility but has since left the organisation.
• A document is adverse if it "contradicts or materially damages" the disclosing party’s contention or version of events, or supports that of an opposing party, on an issue in dispute.

This is helpful clarification, but leaves obvious scope for debate on various issues, such as the breadth of the group that will be considered to have "accountability or responsibility" for the relevant matters. It seems likely that these points will need to be clarified in case law in due course.

Privilege

The proposals published last November also stated that where a party wishes to claim a right or duty to withhold documents, eg on grounds of privilege, it must describe the document (or part of a document or class of documents) and explain “with reasonable precision” the grounds for exercising the right or duty. This led to concerns expressed by some respondents (again including ourselves) as to whether this was intended to signal a change to the currently accepted practice of describing privileged documents in generic terms.

The revised version addresses this concern, deleting the reference to "reasonable precision" and clarifying that a claim to privilege may (unless the court otherwise orders) be made in a form that treats privileged documents as a class. This is said to be subject to compliance with the duty on the party's legal representatives to satisfy themselves that any claim to privilege is properly made and the reason for it is sufficiently explained - a duty which is made express in the new rules, but which is not new. The clarification that privileged documents may be treated as a class, as currently, is welcome and should hopefully avoid the significant potential for satellite litigation that existed under the original wording.