The majority of the recommendations made by Jackson LJ in his 2010 'Review of Civil Litigation Costs' have now been implemented. They fall into five key areas, all of which came into effect in April 2013.

1. Costs

2. Funding

3. Case management

4. Disclosure

5. Part 36

In the July issue of CirculaR we looked at costs, and in September, we examined the issue of funding in civil litigation. In this issue, it's the turn of Disclosure.

What is the main change? From 1.4.13, in all multitrack cases (except PI) the historical presumption in favour of "standard disclosure" has been replaced with a "menu" of disclosure options.

The disclosure menu CPR 31.5(7)

  • Standard disclosure.
  • No disclosure.
  • Limiting disclosure to documents on which the parties rely, with the ability to request further specific disclosure.
  • Disclosure on an issue-by-issue basis.
  • "Train of enquiry disclosure".
  • Any other order that the court considers appropriate.

Although it has always been best practice to consider the scope and process of disclosure at a very early stage in litigation, it is now imperative to do so. If the first time it is discussed is at the Case Management Conference, that is already at least two weeks too late. By the time the parties arrive at the CMC, the very least they need to have done is file and serve a Disclosure Report, and had discussions in order to try and agree proposals.

New procedure: the timeline

14 days before CMC – file and serve Disclosure Report (CPR 31.5(3)) (see further below).

7 days before CMC – parties to discuss and seek to agree proposals in relation to disclosure (CPR31.5(5)).

At CMC – the judge will give directions about how disclosure should be given, having regard to the overriding objective and the need to limit disclosure to that which is necessary to deal with the case justly (CPR31.5(8)). This may include:

  • what searches are to be undertaken, of where, for what, in respect of which time periods and by whom;
  • the extent of any search for electronically stored documents;
  • whether lists of documents are required;
  • how and when the disclosure statement is to be given;

New procedure: the timeline (cont)

  • in what format documents are to be disclosed (and whether any identification is required);
  • what is required in relation to documents that once existed but no longer exist; and
  • whether disclosure should take place in stages. What is a disclosure report?

The parties must complete a disclosure report which:

  • Describes the documents.
  • States where the documents may be found.
  • Gives a broad estimate of costs.
  • Sets out the direction (from the "menu" – above) which the party is seeking.
  • Attaches a copy of the N264 (Electronic

Documents Questionnaire) if one has been completed.

The report can be in Form N263 although there is no actual requirement as to format.

In our experience, parties and the Court are still defaulting to 'standard disclosure' as it seems that old disclosure habits die hard. Perhaps once litigants have got to grips with costs budgeting, they will turn their minds to the potential costs savings of limiting disclosure in some shape or form. At present, however, 'standard disclosure' is still very much the comfort blanket.

Practice points

  • Consider disclosure at the first stages of the procedure.
  • Think about the disclosure menu and be ready to persuade your opponent and the Court why your preferred option is most appropriate.
  • Keep in mind the issue of "proportionality" – the new buzz word in litigation.
  • Remember – the disclosure obligation is a continuing one.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.