Lord Justice Jackson has warned that ‘huge’ sums of money will be wasted if the legal profession gets electronic disclosure wrong. Delivering the seventh lecture on implementing his civil litigation reforms, the judge said effective training is ‘essential’ for solicitors, judges and counsel if the practice direction issued a year ago on electronic disclosure is to be operated effectively.

Jackson’s comments came in a speech today on document disclosure. ‘Even in medium-sized actions, where all the documents are in paper form, disclosure can be a major exercise which generates disproportionate costs,’ he observed. ‘In larger actions where the relevant documents are electronic, the problem is multiplied many times over. That problem is accentuated because relatively few solicitors and even fewer barristers really understand how to undertake e-disclosure in an effective way.’

Jackson’s final report to the government recommended that a new civil procedure rule should drafted to adopt the so-called ‘menu option’, both in relation to large commercial and similar claims, and any case where the costs of standard disclosure are likely to be disproportionate. Personal injury and clinical negligence claims were excepted.

A new rule has now been agreed to implement the menu option, which sets out a ‘menu’ of possible disclosure orders from which the court should choose, without a specific steer towards standard disclosure.

The rule committee, has, however, decided not to proceed with a clause that would have required the solicitor, or other person who will have conduct of giving disclosure for a party, to be present at the first case management conference (CMC).

This was because the provision is ‘more a matter of professional conduct than for the rules’, Jackson said. But he stressed: ‘I hope that solicitors will take seriously the need to have the relevant person present at the first CMC. Fundamental decisions are likely to be made about disclosure. If the person who is responsible for disclosure and understands what material exists does not attend, inappropriate costs orders may be made with drastic costs consequences for the client.’

One possible order that could be made under the menu option rule is that each side (after removing privileged documents) should simply hand over the ‘key to the warehouse’. ‘In other words,’ said Jackson, ‘each party hands over all its documents and the other side can choose which ones it wishes to use. This means that each party devotes its resources to selecting what it regards as helpful from the other side’s store of documents. That is the opposite of standard disclosure, which requires each party to examine its own documents and (in effect) pick out the ones that it thinks will help the other side.’

The rule changes will be delayed until the date for implementation of the Legal Aid, Sentencing and Punishment of Offenders act, likely to be October 2012.