A top judge and leading City litigators this week said that restricting disclosure could help cap spiralling litigation costs.

Lord Justice Neuberger, the judge in charge of court modernisation, and a report this week by members of the Commercial Litigators Forum (CLF) - a group of lawyers from City law firms - both said a more proportionate approach to disclosure may be needed, especially with mushrooming electronic documents.


Lord Justice Neuberger said the Woolf reforms have not reduced disclosure. 'The other big problem is searching through your electronic records... and the amount of work you have to do can be quite extraordinary. I think there is an argument, and I can't put it higher than that, to say it's worth looking at other countries, if you really want to cut the cost of litigation, which do not have automatic disclosure and comprehensive disclosure.'


The CLF paper on the cost of litigation identified the process as the underlying problem and a 'more restrictive approach to evidence', being the main cause of costs, as a possible solution.


The report continued: 'Discussion of changing the scope of disclosure generates strong feeling. Many people regard it as a cornerstone of the common law adversarial system and will not easily allow its scope to be eroded. Clients dislike the burden (and consequent cost) of giving disclosure, but feel nervous about changing it to such an extent that they will be unable to get access to an opponent's documents which will advance their case: they may never find the "smoking gun" document.'


The authors - Lovells partner Neil Fagan and John Reynolds, a partner in the London office of US firm McDermott Will & Emery - pointed to International Bar Association rules on disclosure in arbitration as one possible approach.


Broadly, they require parties to disclose the documents on which they rely; the opposing party may then apply for specific disclosure of additional documents or classes of document that will assist in the adjudication of the case.


But Graham Huntley, president of the London Solicitors Litigation Association, said recent rule changes on e-disclosure need to be given time. Judges must also be more involved earlier in litigation to limit the amount of disclosure, as envisaged by the Civil Procedure Rules but not yet borne out in practice. 'That process ought to be given a chance to run its course before we start to tinker with some fundamentals of the system,' he said.


The CLF report backed firmer case management and found clients generally content to continue with hourly billing, so long as there is greater use of staged budgets or estimates.