Re-writing the rules on disclosure for civil litigation: proposed pilot scheme announced 

A proposed pilot scheme has been announced yesterday, 2 November 2017, for some significant proposals to modernise and reform the current rules on disclosure in the Business and Property Courts of England and Wales.

The initiative has been spearheaded by a Rolls Building Disclosure Working Group, chaired by The Rt. Hon Lady Justice Gloster, with a sub-committee of four responsible for drafting the proposed new rule.  The sub-committee comprised, Chief Master Marsh, The Hon. Mr Justice Knowles CBE, Vannina Ettori (Legal Adviser to the Chancellor) and LSLA president and partner at Simmons & Simmons, Ed Crosse.

Please see here for the formal announcement from the Disclosure Working Group.

Background and why reform is needed

With the advent of the digital age there has been an explosion in the amount of information and communication that businesses store electronically, with knock-on effects on what needs to be disclosed when disputes go to court.  Practitioners talk about the ‘monster’ of e-disclosure, which needs to be tamed. Indeed, survey responses from 280 UK litigation practitioners conducted by the LSLA and New Law Journal in July this year revealed that the problem with the current disclosure regime is considered one of the most pressing challenges the UK litigation system faces – a resounding 72% of respondents declaring the current disclosure regime ‘not fit for purpose’.  This is an issue that has a direct bearing on the London courts’ ability (or otherwise) to maintain its crown as the world’s litigation centre of choice.

Reform welcome

Today’s news that reform is on its way will be welcomed enthusiastically by practitioners and court users alike.

Next steps

Subject to approval from the Civil Procedure Rules Committee (which is likely to be sought in March / April 2018), the proposal is that the scheme will be run as a mandatory pilot across the Business and Property Courts in the Rolls Building, and in the centres of Bristol, Cardiff, Birmingham, Manchester, Leeds, Newcastle and Liverpool for a two-year period.

Prior to its launch, further consultation and feedback on the proposals will be sought from the judiciary, professional associations and user groups in London and the circuits on an open forum basis.

Ed Crosse, President of the London Solicitors Litigation Association (LSLA) and Partner at Simmons & Simmons, who helped draft the new rule, commented:

“As a profession, with arguably the greatest interest in reform and in promoting London as the forum of choice, it is essential that we constructively engage with these proposals to ensure we secure procedures we would be happy to recommend to our clients.

“Disclosure is one of the key benefits of litigating in London, and creating a world class civil disputes regime is critical to maintaining the Capital’s pre-eminence, particularly with Brexit fast-approaching and other centres competing to steal that crown.

“To be clear, the proposals are not about removing a party’s ability to obtain fulsome orders for disclosure, in appropriate cases – the availability of such orders is a real selling point for our courts in England and Wales. However, not all cases justify a ‘Rolls Royce’ approach to disclosure, and the rules need to cater for this and curb the excesses.”

“If we want to reverse a trend of increasing disclosure costs, we need a marked change in culture and approach by the parties and the courts. Currently, there is not enough co-operation and engagement between the parties on disclosure, and there is also a perception (identified by the LSLA / NLJ survey) that the courts could be more robust in managing disclosure and curbing the excesses.

“Clear duties need to be prescribed to drive change, backed by proportionate sanctions for non-compliance for those parties who fail to co-operate and engage.

“The use of technology to help with the review of electronic data, has made great strides and received judicial recognition; the Pyrrho ruling on predictive coding was a positive step in this area.  The proposed new rule will formally recognise and encourage the use of technology and, indeed, imposes an express duty on the parties to consider whether, and, if so how, technology might assist.  It has been said that technology, with the proliferation of data, has caused the problem with disclosure, but it also provides part of the solution.”

Rosemary Martin, Group General Counsel & Company Secretary, Vodafone Group, UK and Chair of the GC100 commented:

“The GC100 members are delighted that the Working Group has taken the task of revising the disclosure rules so seriously and with a much more radical attitude than many were expecting.  If, collectively, we can get behaviours to change too (the difficult bit) then this initiative will be enormously valuable for the future.”

The deadline for responses to the consultation is 28 February 2018.   Respondents have been encouraged to provide feedback via their professional associations and Court user meetings.

For more detail on the Court’s announcement and the guidance note prepared, click here.

 

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