All change for disclosure in the New Year.

Robert Salek, Associate in our Dispute Resolution department notes what the important changes will be.

Disclosure is the process in litigation during which the parties disclose to the other parties documents that are relevant to the case. The parties can therefore see evidence that both supports and undermines its case. It very often proves one of the more lengthy, and costly, phases in litigation.

New rules governing disclosure have been announced to operate in the Business and Property Courts that will take effect from 1 January 2019. These new rules aim to tackle the length and cost of disclosure through simplifying the procedure where possible.

The important changes will be:

  • A new express duty to disclose known adverse documents in all cases. Previously, an order to do so would have to have been made.
  • Initial disclosure of key documents necessary for other parties to understand the case they have to meet will be given with the parties’ Statements of Case, i.e. the Particulars of Claim (Claimant) or the Defence (Defendant). This is earlier than the current position. It is hoped that this initial disclosure may mean further, lengthier and more onerous disclosure later in the case is not needed. And, perhaps, it may lead the parties to an early pre-action settlement.
  • Following Statements of Case, the parties will be required to meet, discuss disclosure and produce a joint Disclosure Review Document. This document will set out the issues on which documents might assist the Court to determine the issues, make proposals for further disclosure and share information concerning the storage of documents and methods to search documents. It is hoped this Disclosure Review Document will assist the parties to agree upon a disclosure method that is best-suited to the case. The parties must cooperate in producing this document so that the Court knows the parties’ views and the likely costs of the disclosure proposed.
  • The Court will also consider disclosure methods and there is a push for the Court to be more involved in this process, guided by the familiar tests of reasonableness and proportionality, and to not simply accept the method proposed by the parties. The parties will also be able to apply to the Court for guidance where necessary.

As always with procedural changes, the proof will be in the pudding to see whether the changes have the desired effect, i.e. the reduction of costs and alleviating the burden of disclosure, or whether they give rise to further arguments that ultimately add to the burden and cost of the process.

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