Finding the needle in the haystack - changes ahead for disclosure in civil proceedings
Back in the late 1990s when I was a Trainee Solicitor, litigation seats invariably involved many late nights sifting through piles of documents, which then had to be listed and manually paginated. Before the introduction of the Woolf Reforms in April 1999, a document was disclosable if it might lead to a train of enquiry about the issues in the case. This yielded large amounts of disclosure at significant cost, very little of which was usually of any significant relevance.
The shortcomings of this test for disclosure was supposedly addressed by the introduction of standard disclosure in the Civil Procedure Rules. The idea of standard disclosure was to make disclosure more focused, requiring a reasonable search to be carried out and disclosure made only of those documents upon which a party relies or which adversely affect or support any party’s case. A litigant cannot therefore cherry pick which documents to disclose and only provide his opponent with those which support his case, nor can he deliberately chose not to look in a file that he knows contains damaging evidence. As solicitors, we owe duties as officers of the Court to police the disclosure process to ensure corners are not cut.
However, when standard disclosure came into effect in 1999, no one had a smartphone and few people had a computer on their desk or used email. The pool of documents to be reviewed mainly consisting of hard copy documents. Fast forward almost 20 years and the advent of modern communications has yielded a proliferation of potentially disclosable documents. Anything in which information of any description is recorded is a document for the purpose of disclosure. Think about how many emails, text messages, instant messages, social media posts and photos you create and receive in a typical day and the sheer volume of potentially disclosable material becomes overwhelming.
Fortunately, the disclosure process is about to get a long-overdue shake-up. A Disclosure Working Group was set up in May 2016 to come up with a more practical and proportionate method for parties to give disclosure in civil cases. With Brexit on the horizon, the English Courts need to remain an attractive forum for dispute resolution. To quote the Disclosure Working Group, “a wholesale cultural change is required”. To achieve such a “wholesale cultural change”, the Disclosure Working Group propose the following:
- The introduction of Basic Disclosure – this will involve disclosure of just the key documents that the disclosing party wishes to rely upon and those which are necessary for the opponent to understand the case that they have to meet. Basic disclosure will be given right at the outset when statements of case (i.e. claim forms and defences) are served.
- The parties will then complete a Disclosure Review Document (“DRD”) which will (i) list the main issues in the case (ii) exchange proposals for Extended Disclosure and (iii) share information about how documents are stored and how searches for such documents might be carried out (such as through the use of keywords)
- Model A – no further disclosure will be given and the case will proceed with only the Basic Disclosure already given.
- Model B – limited disclosure, requiring the disclosure of both documents upon which a party relies and those which are known to adversely affect the case but without the need for a party to carry out a further search for more documents.
- Model C – request led, search based disclosure, whereby each party would be able to request specific disclosure from their opponent. This would oblige parties to carry out a search for such documents and disclose any adverse as well as helpful documents found.
- Model D – standard disclosure, which as is currently the case requires a party to make a reasonable search for all documents upon which a party relies or which support or adversely affect either party’s case.
- Model E – exceptional disclosure requiring a reasonable search for any documents that may lead to a train of enquiry that may support or adversely affect either side’s case (taking us right back to how disclosure was done pre 1999 but now with the added headache of mountains of electronic documents).
If the proposals work in practice, this should be a big step towards the aim of enabling litigation to be carried out at proportionate cost. However, it relies on solicitors being able to have a sensible and constructive dialogue about disclosure at an early stage in proceedings when they may still be getting to grips with the issues in the case. It also could lead to satellite litigation where the parties cannot agree on how disclosure should be given. That said, if the proposals work, the result should be a streamlined disclosure process with a focus on what are really the key documents, which should facilitate the prospects of settlement. More focused disclosure should also avoid deep-pocketed litigants using the tactic of swamping their opponent with a load of marginally relevant material to increase costs. Watch this space!