Article published in CDR, 31 January 2018
The disclosure of evidence in England and Wales is increasingly seen as problematic, both by clients and lawyers for both claimants and defendants, particularly in commercial claims. Proposals for reform deserve serious consideration.
A seminar on reforms to the system of disclosure of civil evidence, in early January, may not seem the most propitious event to mark the beginning of a new year. Yet appearances can be deceiving.
The event, hosted by the London Solicitors Litigation Association, was standing room only, with over 260 people attending the event at Simmons & Simmons, to hear presentations from a panel which included Chief Master Marsh, Mr Justice Robin Knowles, Caroline Field of Fox & Partners and David Owen, a litigation lawyer at Barclays.
WORKING PARTY PROPOSES REFORMS
The event follows the publication, last November, of reforms to the rules on disclosure, which were conceived by a working group chaired by Lady Justice Gloster, on which LSLA president Ed Crosse was also a member.
The working party was formed following concerns by both practitioners and the judiciary that the current system of standard disclosure, as set out in Part 31 of the Civil Procedure Rules, is no longer ‘fit for purpose’, according to 72% of respondents in an LSLA survey.
The costs involved in disclosure exercises in major court cases, such as the RBS litigation, have also concentrated the minds of corporate counsel, as has the need to manage electronic documents from a wide variety of sources, given, as Ben Packer of Linklaters told CDR: “The test in the CPR to disclose all documents that support or undermine your case is incredibly broad and can lead to enormous exercises to identify relevant documents.”
Speaking to CDR in November, Crosse explained that “creating a world class civil disputes regime is critical to maintaining London’s pre-eminence, particularly with Brexit fast-approaching and other centres competing to steal that crown”.
“To be clear, the proposals are not about removing a party’s ability to obtain fulsome orders for disclosure, in appropriate cases – the availability of such orders is a real selling point for our courts in England and Wales. However, not all cases justify a ‘Rolls Royce’ approach to disclosure, and the rules need to cater for this and curb the excesses.”
He continued: “If we want to reverse a trend of increasing disclosure costs, we need a marked change in culture and approach by the parties and the courts. Currently, there is not enough co-operation and engagement between the parties on disclosure, and there is also a perception that the courts could be more robust in managing disclosure and curbing the excesses.”
Crosse said: “Clear duties need to be prescribed to drive change,” with the proposed rules on disclosure offering a range of options for the parties, while making the duties of all sides, and their advisers, clear, with “proportionate sanctions for non-compliance for those parties who fail to co-operate and engage”.
One significant element of the reforms is a new innovation – a disclosure review document (DRD) to be completed by both sides early in the proceedings – summarising a list of key-issues specifically focusing on disclosure, in a process that will be led by law firms.
The reforms, added Crosse, when they were formally announced, would take technology into account, including technology assisted review and predictive coding.
He said: “The proposed new rule will formally recognise and encourage the use of technology and, indeed, imposes an express duty on the parties to consider whether, and, if so how, technology might assist. It has been said that technology, with the proliferation of data, has caused the problem with disclosure, but it also provides part of the solution.”
PROPOSALS OUT FOR CONSULTATION
Gloster LJ announced the working group’s findings in November; having been named as the guest of honour at the LSLA’s annual dinner that same month. Crosse acknowledged, at that dinner, that identifying the problems with the current disclosure regime was the easy part of the exercise for the working group; the real challenge was how to fix them, which called for a collaborative approach.
As Crosse said to LSLA members then: “The working group started out with the modest intention of putting Part 31 into a wind tunnel, to see which bits could be stripped away to achieve greater speed and efficiency, but in fact, what we ended up doing was completely re-writing the rule.
He added: “The proposed rules will, if accompanied by a change in culture and behaviours by the profession and judiciary, materially contribute to a more efficient and effective administration of civil justice.”
Subject to approval from the Civil Procedure Rules Committee, likely to be sought in spring 2018, the proposal is that the scheme will be run as a mandatory pilot across the Business and Property Courts in the Rolls Building and in the major centres of Bristol, Cardiff, Birmingham, Manchester, Leeds, Newcastle and Liverpool for a two-year period.
The senior judiciary agreed an extensive programme of consultations, with the LSLA meeting in January forming one of them, with further presentations in Bristol, Manchester and London, with the GC100 – a leading group of corporate counsel – also being canvassed, as well as meetings with the Bar.
Rosemary Martin, group general counsel of Vodafone, and the chair of the GC100 commented, in a statement: “The GC100 members are delighted that the working group has taken the task of revising the disclosure rules so seriously and with a much more radical attitude than many were expecting. If, collectively, we can get behaviours to change too (the difficult bit) then this initiative will be enormously valuable for the future.”
One City lawyer CDR spoke to welcomes the reforms, but sounds a note of caution, saying that their success would rely on judicial willingness to engage with a subject less suited to counsel that to law firms.
They said: “Judges have traditionally been reluctant to wade into disclosure disputes, and have been inclined to take the safer option of ordering disclosure when asked. They should take a much more hands-on approach at an early stage in proceedings, actively managing the extent of searches parties should be required to undertake. In this, judges should give more weight to the cost and time involved in searching for materials.”
Others, however, were more positive, with John Reynolds of White & Case speaking for many. Speaking from his perspective as a banking litigator, Reynolds praises the work done by the working party, saying “the court continues to make advances as regards the suite of disclosure options available – moving away from standard disclosure which is very often the most costly part of the litigation process for our clients”.
“These issues, and recent proposals re-emphasise the need to focus on what disclosure is actually required in any given case and we have already seen that the English courts are more willing to adopt these initiatives in some of our ongoing matters.”
Reynolds adds, that, notwithstanding such progress, he would continue to call for improvements, noting that “major financial institutions are constantly looking for a more streamlined and efficient approach to disclosure, as invariably they have the most to lose, and the least to gain from the document production process,” saying “there is work to be done”.
DISCLOSURE DISCUSSED IN DEPTH
The January seminar gave a flavour of the issues the working group has had to contend with, while it has continued to listen to comments from law firms ranging from Herbert Smith Freehills, Freshfields Bruckhaus Deringer, Hogan Lovells, as well as client groups such as Barclays, Lloyds Bank, and the Government Legal Department, aimed at both simplifying and improving the DRD, and tweaking the draft practice direction and forms.
Other firms, such as DLA Piper, are hosting client dinners around the event, with others still preparing individual responses, or responding via the LSLA, the Law Society and other bodies.
Some elements of the new system would chime with arbitration lawyers; indeed, Reynolds, in advance of the seminar, mentioned the fact that “clients tend to still look more favourably towards the IBA Rules on the Taking of Evidence as the most sensible and efficient document production rules”, and his thoughts were echoed by some at that event.
Given the added option, said Chief Master Marsh “horror of horrors”, of no disclosure at all, a proposal which some radical litigators have also suggested as a response to the issue, it was clear that lawyers are genuinely considering the options, with some extolling the virtues of other common law systems, such as Ireland and Scotland.
There was some scepticism about the proposed costs savings – Owen said that negotiation between lawyers before the case management conference set to discuss the DRD could mitigate against the need to reduce spending on disclosure – but equally, he noted there was a “lot of merit” in the early discussion by lawyers on the disclosure of documents which might reduce costs, and crucially, focus witness statements.
The idea of chasing the ‘smoking gun’ was “expensive and a rarity”, Field noted, and the emphasis, as Field was at pains to suggest, was on proportionate solutions – something Owen was keen to endorse – while Knowles J stressed the opportunity to shape disclosure by making it appropriate to the issues, noting there had been much frontline feedback on what that might mean.
What was not at issue was the need to find adverse documents, where they existed, that were relevant to a case and while Marsh acknowledged the proposed reforms had generated “fierce debate”, both he and Knowles were clear about the essential need for reform, come what may.
Knowles J told the audience: “We can’t go on as we are, and this is our only chance. The stakes couldn’t be higher. It is absolutely worth it.”