In 2016, general counsel from some of the UK’s biggest companies asked for a face-to-face meeting with the two most senior judges: the Lord Chief Justice and the Master of the Rolls. What did they want to discuss? They were calling for changes to the disclosure rules.
The volume of data held by companies and individuals has been growing exponentially for years. For members of the GC100 group of large businesses, this meant disclosure was becoming a real nightmare; and one that technology alone could not solve.
The concerns of these clients prompted the then Master of the Rolls to set up a working group to look at how disclosure could be improved in the Business and Property Courts (BPC). This led to a set of reforms that initially took the form of a mandatory pilot in 2019. After being extended several times and subject to a number of improvements, the new disclosure rules then became permanent last October.
Last month, the Chancellor of the High Court Sir Julian Flaux, who was heavily involved in the new rules, gave a detailed speech on how the disclosure regime is intended to operate. The judge stressed how important disclosure is to the litigation process; and how co-operation between parties lies at the heart of the new scheme.
He then outlined some ‘central messages’ in the new rules and practice direction. This included that:
- Parties cannot simply operate as they wish. In particular, where they want to apply ‘extended disclosure’ under the new rules, the court must supervise its use – unlike the previous position in relation to the old ‘standard’ disclosure. Indeed, there is no entitlement to extended disclosure; it must be justified and approved by the court;
- Disclosure is directed to the key issues in the proceedings; and specifically, to those that are listed in the list of ‘issues for disclosure’;
- The concepts of reasonableness and proportionality must play a role in limiting the scope of disclosure;
- Disclosure is there to help the ‘fair resolution of the issues in the claim’.
Flaux LJ said disclosure should not be seen as simply a ‘phase’ in the litigation, following statements of case. ‘Wherever possible, disclosure must be thought about before litigation commences’, he advised.
The judge noted that under the new rules, there is now a requirement for parties to make ‘initial disclosure’. He added: ‘For those who want to avoid initial disclosure, I would ask rhetorically, why would you not want to ensure at the outset that the other party has the core documents you have relied upon, and those which are essential in order to understand your case? And why would you not want the corresponding core documents from the other party?’
Stressing the need for co-operation, Flaux LJ added: ‘Disclosure simply cannot operate effectively without the parties engaging with each other. That requires them to communicate in a constructive and meaningful way’.
Practical pointers
Emphasising the need to consider disclosure at the outset, before the claim is even issued, Flaux LJ set out a helpful list of very specific questions that litigators should ask themselves at an early stage. These include:
- What documents need to be preserved?
- What documents need to reviewed in order to give advice about the claim or its defence?
- What are the likely issues, or what are the issues that have been identified in pre-action correspondence?
- What initial disclosure will need to be provided?
- What are likely sources of data; are documents in hard copy or electronic – and will electronic searches be needed now and/or later? Are documents held on multiple electronic devices or servers? Are they held at multiple sites – potentially across different jurisdictions?
- Which party is likely to hold the bulk of the documents to be searched?
- What is the likely volume and nature of data that may need to be searched and reviewed?
- Should an e-disclosure provider be appointed at the outset? In most cases – unless you have such resources in-house – the answer is likely to be ‘yes’.
Responding to criticism
In his concluding remarks, Flaux LJ dealt with a criticism often been levied at the new disclosure regime; which is that it involves too much work in the earlier stages of a case. The judge said: ‘[T]here have been complaints that the new system front loads work and cost. But I wonder whether that is really so?
‘Can it sensibly be said that allowing parties to proceed through disclosure without any such engagement, thought and focus will lead to an efficient outcome when it comes to the review and production of data?
‘Do we really want a situation where parties can dump vast quantities of documents on the other side as a litigation tactic? Or where parties have failed to discuss how such documents should be produced from a technical perspective? Or where parties are having to undertake searches across a far larger body of data than is proportionate, simply because there has been no discussion about this or parties have been like ships that pass in the night so far as disclosure is concerned?’
And the judge ended with a plea: ‘Disclosure is central to our system of litigation. It is one of the things that enables claims to be tried fairly.
‘We all, judges, practitioners, and clients, need to make the new procedure work well and support the change in culture.’
So with the new disclosure regime now firmly in place and undoubtedly here to stay, Flaux’s advice on how to make it work effectively is clearly very useful. With that in mind, his full speech (https://www.judiciary.uk/wp-content/uploads/2023/01/Disclosure-Lecture-2023_.pdf) should be considered compulsory reading for anyone who represents clients in the Business and Property Courts.
February 20, 2023
Insights
