Lawyers and judges must make better use of the disclosure menu to tackle one of the big cost drivers in commercial litigation, Lord Justice Jackson told delegates at the Law Society’s Commercial Litigation Conference last night.
Meanwhile Professor Rachael Mulheron, chair of the Civil Justice Council’s working group on damages-based agreements, hit out at the government for failing to act on any of the 56 recommendations it made, at the government’s request, last year.
Jackson (pictured) said disclosure was ‘not an area where any reform whatsoever is needed’, but the existing rules needed to be used ‘fully and more imaginatively’.
New disclosure options became available in April 2013 in a bid to move away from standard disclosure orders, and reduce time spent by lawyers gathering and sifting through vast quantities of paper and electronic data.
But Jackson lamented that in large commercial actions and other substantial cases, parties often agree standard disclosure as the ‘default option’.
The judge noted that following a GC 100 seminar on disclosure in April this year, a working group had been set up to address the issues further. In a note accompanying his speech, the judge suggested that the group might like to consider whether what was needed was ‘culture change’ rather than ‘rule change’.
He said the group might encourage practitioners to ‘think twice’ before agreeing standard disclosure ‘however profitable that might be for the lawyers’.
Jackson added that judges also needed to be ‘more proactive, by pressing counsel as to what documents are needed and why, rather than approving any agreed directions for standard disclosure’.
Responding to Jackson’s speech, conference chair David Greene, senior partner at Edwin Coe and a Law Society Council member, said: ‘[As lawyers] We don’t see the disclosure process as a licence to make money. We see it as a way to meet our clients’ interests, and we try to do it in a proportionate way.’
Professor Mulheron addressed the conference on the topic of damages-based agreements, which have seen little take-up by the profession since their introduction in April 2013 through a set of regulations broadly regarded by lawyers as poorly drafted and unworkable.
In October 2014, then justice minister Lord Faulks asked the Civil Justice Council to suggest improvements to the 2013 regulations.
Mulheron noted that the CJC, which produced a 145-page report in September 2015 in response to the government’s request - including detailed re-drafting suggestions - had not done this work ‘off our own bat’.
She said it was ‘a great pity’ that the report had not been taken forward – and hoped the lack of reference to DBAs in the government’s Transforming Justice consultation did not mean that the issue has ‘dropped off the agenda’.
Mulheron said that while much attention had focused on the issue of ‘hybrid’ DBAs, which government had placed outside the CJC’s remit, the report also dealt with a number of other crucial issues – for example, the DBA position where there is both a claim and a counterclaim, and the question of whether counsel’s fees should be included within the DBA cap.
‘At the time [when we published the report] we were told that the MoJ was reviewing it and that re-drafting would be occurring in the MoJ,' she said. 'We have yet to see the outcome of that… DBAs were intended to be an alternative means of funding with an important part to play’.