UK: New Disclosure Obligations for Multi-Track Litigants

Last Updated: 12 October 2010
Article by Julia Staines


All litigants are obliged to disclose and permit inspection of documents which either support or undermine their case.

However all new multi-track cases1 which are commenced on or after 1 October 2010 will be subject to more rigorous requirements in relation to electronic disclosure ("edisclosure") and it is important that all litigants are aware of their obligations.

In practical terms, this means that all parties must consider electronic disclosure at a much earlier stage than is currently the case.

What is Electronic Disclosure?

A "document" is anything in which information of any description is recorded. Electronic disclosure includes text messages, audio and visual recordings, information held on portable devices (eg PDAs and memory sticks), computer hard drives, disks, mail servers and back-up systems, electronic diaries, photographs, voicemail, and, most importantly, e-mail. It also includes any data which has been deleted, and metadata.

What are the Main Changes?

Revised procedures are contained in a new Practice Direction (PD31B) and e-disclosure questions have been added to the Allocation Questionnaire.

There are 3 key features of the new regime:

  1. As soon as litigation is contemplated, the parties are under an obligation to preserve disclosable documents.
  2. The parties and their legal representatives must cooperate in discussing:

    1. disclosure and management of electronic documentation; and
    2. the tools and techniques/formats to be used for disclosure and inspection, in order to reduce the burden and cost of the exercise.

    This may involve attempting to reach agreement on the extent of a "reasonable search", the keyword searches to use, and the basis for charging for, or sharing the cost of the edisclosure exercise.
  3. The parties may complete and exchange an Electronic Documents Questionnaire.

Why are the Changes Happening?

The current obligation to disclose electronic documents and information has been largely ignored or overlooked. In many instances, the parties have not taken their obligations seriously, and there have been a few high-profile cases where poor management of electronic disclosure led to wasted Court time, and therefore increased costs.

Senior Master Whitaker was therefore asked to undertake a review of the situation, and the new regime is a result of his recommendations.

The changes aim to reflect "best practice" and to encourage greater co-operation between the parties in relation to disclosure.

What is the Practical Effect of the New Regime?

  1. You may wish to review your document retention/destruction policies. Parties which have destroyed documents when litigation is contemplated, even if it has been done by mistake or in accordance with a routine destruction, can expect adverse inferences to be drawn. In extreme cases, a party's claim or defence may be struck out. There is no guidance on the meaning of "when litigation is contemplated" so it is always best to err on the side of caution.
  2. Parties and their legal representatives must work together at an early stage, in order to ensure that their e-disclosure obligations are met. This will mean co-operating with the other side in discussing the management of e-disclosure. Parties are likely to have to exchange information about their storage systems and document management practices.
  3. The Court must be informed (at the first Case Management Conference) about the matters which the parties agree on, and those which they don't agree on.
  4. If the parties cannot agree, the Court is likely to order the parties to complete the Electronic Documents Questionnaire. This new Questionnaire contains 23 questions about a party's electronic documents, including how they intend to carry out searches and give inspection, as well as their thoughts on what other parties should do with regard to disclosure of their electronic documents.

What are the Benefits of the New Regime?

Although Senior Master Whitaker has described the new regime as, quite simply, a "roadmap" for e-disclosure, some of the requirements may seem quite onerous. However, the key issue is to try to ensure that parties carry out a proportionate and reasonable search for electronically stored documents. The key solution lies in the parties exchanging information before they carry out the search. This should have the effect of reducing or avoiding costly court applications.


1. multi-track cases generally have a value of more than £25,000 and/or have complex issues of fact, law or evidence

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.

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Julia Staines
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