Article published in the Law Society Gazette, on 18 January 2018
A radical new disclosure regime for the Business and Property Courts will have a ’far-reaching effect on civil litigation’, a leading City lawyer has claimed.
Ed Crosse, president of the London Solicitors Litigation Association and a member of the working group behind the proposals for disclosure reform, said the changes went ‘to the heart’ of civil litigation.
Plans for a complete overhaul of the rules on disclosure, drawn up by a dedicated disclosure working group chaired by Lady Justice Gloster, were published last November and will be subject to a two-year mandatory pilot once approved by the Civil Procedure Rule Committee. The pilot will run across the Business and Property Courts in London and throughout the regions, with some limited exemptions for areas such as intellectual property and Admiralty cases.
Following a request from the master of the rolls for further consultation on the plans, the working group is seeking feedback from lawyers and clients via representative groups, and hosting a series of roadshows and events throughout January and February.
Working group member Chief Master Marsh told an event this week: ‘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.’
Outlining the main aspects to the new disclosure rule, Marsh said it begins by ‘spelling out’ the duties of parties and their lawyers, ‘for example the duty not to dump large volumes of documents on the other side for tactical reasons.’ He said there are ‘explicit sanctions’ for failure to comply.
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 DRD 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, Freshfield Bruckhaus Deringer, Hogan Lovells, Fox & Partners, Barclays, Lloyds 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 DRD.
He added: ‘What you see is the product of some fierce debates in the working group… [but] there is a consensus for change.’
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, and this is our only chance. The stakes couldn’t be higher. It is absolutely worth it.’