Parties in civil litigation will have to persuade a court if they want disclosure to encompass more than just certain key documents, under plans for reforming ‘monster’ levels of disclosure.
According to a paper published by the judiciary, the volume of data that can be disclosed has increased to ‘unmanageable proportions’. The London Solicitors Litigators Association said this has been particularly exacerbated by the digital age.
‘Searches are often far wider than is necessary, and disclosure orders are not sufficiently focused on the key issues,’ the judiciary said.
The new proposals will result in the abolition of ‘standard disclosure’ and instead differentiate between basic and extended disclosure.
Basic disclosure will consist of key documents necessary for an opponent to understand the case, while extended disclosure - under which parties will have to request one of five models - will be at the mercy of a judge.
The reforms have been recommended by the Disclosure Working Group, set up in May 2016 by Sir Terence Etherton, then chancellor of the High Court and now master of the rolls. The group consists of lawyers, experts and judges.
Under the new proposed rule, basic disclosure will be the standard method - though parties can agree to avoid it. According to the working group, a search should not be required and it could remove the need for any further disclosure.
Extended disclosure will be granted on an issue-by-issue basis. Parties will be required to agree a list of issues ahead of the first case management conference and will have to persuade the court to order one of the five models.
Etherton said: ‘It is imperative that our disclosure system is, and is seen to be, highly efficient and flexible, reflecting developments in technology. Having effective and proportionate rules is a key attraction of English law and English dispute resolution in international markets.’
Ed Crosse, president of the London Solicitors Litigation Association and partner at international firm Simmons & Simmons, who helped draft the new rules, said: ’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.’
A four-month window for feedback is now open. The proposed scheme is expected to be approved in March or April.
A two year pilot will run in the Business and Property Courts in the Rolls Building in London and in the centres of Bristol, Cardiff, Birmingham, Manchester, Leeds, Newcastle and Liverpool.