In a lecture at the Law Society’s commercial litigation conference last week, Lord Justice Jackson addressed the topic of disclosure and considered whether more effective use should be made of the rules which have been in place since 2013.
Disclosure can be a costly exercise, not only due to the process of identifying and handing over appropriate documents but also considering bundles from the other side which can be a lengthy process. Therefore, says LJ Jackson, getting a grip on disclosure is one of the keys to controlling litigation costs.
He went on to say that often, people are treating standard disclosure as the default option, with parties frequently agreeing it, seemingly without considering whether other options may be preferable, and the courts accept their agreements. However, it was suggested that it would be to the public benefit if all involved in the disclosure process gave more attention to the full range of options before simply proposing or agreeing to ‘standard disclosure’. These options include, e-disclosure, predictive coding and other types of technology assisted review.
In particular it was noted that more use should be made of CPR r. 31.5 (7) which contains the ‘menu’ of different possible disclosure orders. One possible form of order, which is not expressly set out but which is sometimes made under rule 31.5(7)(f), gives, by consent of each party, the other free access to all its documents (other than privileged documents), so that they can pick out whichever ones they want.
However, it was not just the parties to proceedings that needed to adapt their approach to disclosure. He said judges needed to do more than simply adjudicate upon the parties’ competing submissions:
‘It is necessary to test the opposing arguments’.
He quoted the experience of one unnamed judge:
‘When disclosure is an issue during case management, it is not uncommon to find that the parties’ counsel cannot describe the documents which they expect to be relevant, why they might exist or why they will benefit determination of the issues concerned. This is particularly the case for electronic documents, when requests for practical descriptions and examples are usually met with bluster’.
Despite the fact that this discussion was had in reference to commercial litigation, it is applicable to all areas of civil litigation.
The full speech can be found here.