The future of disclosure
Wednesday, 16th November 2016
Lord Justice Jackson recently spoke at the Law Society's Commercial Litigation Conference on 10 October 2016. One of the main issues that he addressed was CPR 31.5, which came into force in April 2013, and whether sufficient use was being made by parties, and indeed the court, of the range of different options available for disclosure under that provision.
CPR 31.5(7) provides for the following options (in cases to which it applies):
"(a) an order dispensing with disclosure;
(b) an order that a party discloses the documents on which it relies, and at the same time request any specific disclosure it requires from any other party;
(c) an order that directs, where practicable, the disclosure to be given by each party on an issue by issue basis;
(d) an order that each party disclose any documents which it is reasonable to suppose may contain information which enables that party to advance its own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences;
(e) an order that a party give standard disclosure;
(f) any other order in relation to disclosure that the court considers appropriate".
Despite being introduced in April 2013, Jackson LJ noted that the new rules were not being used properly and "In large commercial actions and other substantial cases too often people are treating standard disclosure as the default option". This is likely to be driven by two factors - the first being reluctance on practitioners to steer away from the tried and tested approach of standard disclosure which has been adopted for many years, and secondly the fear of missing potentially relevant information by adopting a more restricted approach to disclosure. It is though inevitable that that courts will begin to order more limited disclosure be provided, driven primarily by the costs budgeting process. Jackson LJ noted that "getting a grip on disclosure is one of the keys to controlling litigation costs", and it is interesting to see that one of the points that emerged from the GC100 disclosure seminar in April 2016 was that parties were generally satisfied with the more restrictive approach to disclosure in patent litigation.
There may of course be cases where standard disclosure is still the most appropriate way forward for the parties, and indeed this is reflected in the fact that it remains amongst the menu of options in CPR 31.5. However, the message from Jackson LJ's recent speech is that the full range of options should be considered and explored by the parties before reaching a decision.
Parties may begin to face increasing judicial scrutiny at the case management conference to ensure that appropriate consideration has been given to the menu of options in CPR 31.5. Parties should therefore be prepared to justify their position in relation to disclosure ahead of the CMC including in circumstances where agreement has already been reached, particularly if that agreement is for standard disclosure.