A key part of any litigation is disclosure - the process during which, under Part 31.6 of the Civil Procedure Rules 1998 (the rules which govern the conduct of all litigation in England and Wales), under Standard Disclosure the parties to a claim are required to disclose to the other party/parties documents which (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case.  A “document” means anything in which information of any description is recorded and the obligation includes documents that are or were in a party’s physical possession; a document which the party has or has had a right to possession of; or a document a party has or has had a right to inspect or take copies of.  Consequently, whilst the search must be reasonable and proportionate, a vast amount of material is often discloseable in any action.

Given that the spiralling costs of litigation remain under intense scrutiny, the approach taken to disclosure and the obligations that surround it continue to be criticized. The Jackson reforms in April 2013 attempted to change the disclosure process by encouraging parties to choose from a menu of disclosure options rather than opting for the previously used Standard Disclosure.  Despite this, the general perception from those in practice is that standard disclosure is still being adopted in most cases.  In a case decided earlier this year, ICAP Management v Berry (2017) 3 Costs LR 531, of the 14,000 pages presented at Court fewer than 100 were considered which meant that just over 99% of pages disclosed went unread.  In an attempt to deal with this widespread problem Lady Justice Gloster is now chairing a committee to review the issue. 

The disclosure working group published its proposals for reform late last year.  The reforms are currently subject to consultation with comments on the proposals requested by 28 February 2018.  It is proposed that a two-year pilot be introduced in the Business and Property Courts to trial the new proposals which introduce a new list of “models” for disclosure designed to steer the parties and the court toward a more restrained approach to disclosure. 

The law of England and Wales has always resulted in a cards up on the table approach to litigation.  However the time and costs being expended by parties in complying with their disclosure obligations is often uncommercial and can in fact be a barrier to the pursuit of justice.  Whilst the thorough approach to litigation is designed to seek out a smoking gun, the general view is that there must be a cheaper and more cost effective way of doing this.  Given the new proposals require parties to disclose documents which adversely affect their case, whilst containing a requirement that parties refrain from providing obviously irrelevant documents, it is hoped that the proposed pilot will offer a more cost effective and commercial way to approach disclosure for the benefit of all those involved in litigation.