Most litigators have not yet paid much attention to a very significant development that is lurking just around the corner: disclosure reform. But when Ed Crosse, a prominent City lawyer involved in drafting the new rules, predicted last week that the proposed changes will have a ‘far-reaching effect on civil litigation’, he was not exaggerating.
This is not tinkering; it is a whole new approach, and is potentially the biggest change to the litigation process since the 2013 Jackson reforms. Full disclosure will still be an option where it is truly needed, not least because the ability to demand the keys to the warehouse is a big reason why many foreign litigants choose to use the English courts. But it will no longer be the norm, and that will come as a shock to many.
Despite the fact that the smoking gun is rarely ever found, lawyers instinctively want to search for it; and in doing so, they keep an army of paralegals in employment, and protect themselves from client criticism that they are not trying hard enough.
In future, lawyers will need to give much more thought to the level of documentation that they really need from the other side, and they will need to do so at the outset of proceedings. The challenge for those making the rules is ensuring that this focus on disclosure does not become another expensive battleground.