Disclosure reforms next month will combat the ‘wasted and excessive’ costs of the current regime, corporate clients asserted last week.
Discussing the reforms at a GC 100 seminar, in-house lawyers were broadly optimistic that the mandatory disclosure pilot coming into force in January would yield the results they wanted.
Richard Blann, head of group litigation at Lloyds Banking Group, said a number of factors currently drive defendants to collate too much information. He said: ‘It’s really difficult to feel comfortable that you know what the issues are in a case, until you are quite far into proceedings. If often looks very vague, and it is hard to get the other side to define [the issues]. So that drives a certain approach to your document collation, which then feeds into a conservative approach from your external advisers.’
Blann added that judges often ‘aren’t that interested’ in constraining disclosure, adding: ‘It all feeds into a cocktail whereby, from the outset, you are collating far more than is needed.’
Blann said he believed the new rules would bring benefits ‘across the board in all different sizes of cases’.
Joanne Cross, assistant general counsel, dispute resolution and special projects at BP, said she hoped the new regime would bring about a ‘change of mindset’ by advisers, moving away from the notion that no stone can be left unturned, which leads to ‘wasted and excessive time and costs’.
Clare Lynch, senior solicitor at Vodafone, added that the requirement in the rules to complete a form setting out issues for disclosure at a much earlier stage would be ‘a short-term pain for long-term gain’. She added: ‘Parties must engage more, which will lead to earlier resolution… In the long term we should see a saving.’
Mr Justice Robin Knowles, a member of the working group that drafted the new rules, said: ‘The message came through loud and clear from clients that if this does involve some more frontloading [of disclosure costs], better that than the waste of the past. The message from clients is that we have got to make this work. This is a chance for [England and Wales] to lead the way.’
The judge added that he was confident that judges will get behind the new disclosure scheme and play their own part in the ‘cultural shift’. He added that a disclosure provider has already been educating judges on the technology available.
From 1 January, a two-year mandatory pilot of the new disclosure regime will begin in the Business and Property Courts in the Rolls Building in London, and the regional centres of Bristol, Birmingham, Cardiff, Leeds, Liverpool, Manchester and Newcastle.
The reforms were originally prompted by concerns raised to lord chief justice in 2015 by the GC 100 group. Last week’s seminar was hosted by City firm Simmons & Simmons, whose partner Ed Crosse was involved in drafting the new disclosure rules.