Article published in the Law Society Gazette, 22 January 2018

The group working on a complete overhaul of the rules on disclosure for the Business and Property Courts is calling for feedback from lawyers and clients. The rules, drawn up by a dedicated working group chaired by Lady Justice Gloster, will be subject to a two-year mandatory pilot once approved by the Civil Procedure Rule Committee.

Ed Crosse, president of the London Solicitors Litigation Association and a member of the working group behind the proposals, said the changes go ‘to the heart’ of civil litigation.

Working group member chief master Marsh told an workshop on the reform: ‘There’s a lot of consultation going on, and it will be for the rule committee to decide whether this pilot, in its current or amended form, is something they want to implement. My own view is that it is very likely to happen.’

Marsh said the reforms will involve a ‘more nuanced’ approach to disclosure, with a range of options. While full disclosure will still be available in appropriate cases, in other instances, ‘horror of horrors, there may even be no disclosure’, he said.

The judge explained that under the new rule, parties will have ‘no choice but to engage with each other’; and a key plank of the reforms will be a disclosure review document (DRD) that must be completed at an early stage. The document is intended to provide a ‘solicitor-led list of issues’ relating specifically to disclosure rather than trial, and should not need input from counsel.

The emphasis on an early focus on disclosure issues has caused some concern among clients, however. David Owen, a litigation director at Barclays and a member of the disclosure working group, warned that if the reforms result in ‘more negotiation from the lawyers’ before the case management conference, this risks failing to address concerns raised about the need to reduce spending on disclosure.

The DRD has already been simplified from its original draft following testing by firms and clients including Herbert Smith Freehills, Freshfields Bruckhaus Deringer, Hogan Lovells, Fox & Partners, Barclays and the Government Legal Department.

Marsh said the new disclosure practice direction would be improved in April and this may involve further simplification of the review document.

Mr Justice Robin Knowles, also a member of the working group, added: ‘Expect this [reform] to happen, because we can’t go on as we are.’