The following article was originally published in The New Law Journal on 14th January 2011. The author is Richard Langley, Head of Litigation & Dispute Resolution at Bircham Dyson Bell.
In a recent lecture to the London Solicitors Litigation Association, Charles Hollander QC suggested that Lord Woolf's attempt to reduce the amount of disclosure had been generally ignored.
Under CPR standard disclosure, a party is only required to disclose documents a) on which they rely and b) which adversely affect or support any party's case. This was a radical shift from the pre-CPR position (governed by the Peruvian Guano case) where discovery extended to all relevant documents including documents which might lead to a train of enquiry enabling a party to advance their case or damage that of their opponent. However, in practice, most parties are still disclosing all documents of any relevance to the issues and the Court of Appeal has made some strong criticisms of solicitors for failing to change their ways.
In Nichia Corporation v Argos Limited [2007] EWCA Civ 741, Jacob LJ said (at [46]): "It is wrong just to disclose a mass of background documents which do not really take the case one way or another, and there is a real vice in doing so: it compels the mass reading by the lawyers on the other side, and is followed usually by the importation of the documents into the whole case thereafter - hence trials bundles, most of which are never looked at."
Charles Hollander suggested that the problem was the innate conservatism of solicitors. Surely that cannot be a sufficient explanation? The reason is far more likely to be that raised (albeit then scorned at) by Lord Justice Rix in the Nichia case (at [72]): "I fear that litigants and their lawyers are paying mere lip service to the change of regime from Peruvian Guano discovery to standard disclosure. It is suggested nevertheless that it is cheaper to look for and disclose everything, than to carry out the reasonable search required; and that even so the cost is likely to be enormous. I am reluctant to accept these suggestions, particularly in the absence of evidence, for they seem to me to fly in the face of the new regime."
It is unrealistic to expect a party to incur costs tailoring their disclosure in order to save their opponent the cost of reviewing it all. And to compound the problem, further costs are bound to be incurred when the opponent enquires as to why relevant documents appear to have been omitted; and is understandably sceptical about the reliability of an assurance that those documents have been reviewed and, albeit relevant to the issues, are not required to be disclosed under standard disclosure.
Multiple problems
The development of e-disclosure has not altered the underlying problem, merely multiplied it. The response has been the new Practice Direction 31B. In itself, this is an impressive (and very useful) piece of work, but it will not lead to a saving of costs. On the contrary, it introduces another layer to the litigation process. It guides solicitors as to how to conduct a more or less total search of all available data sources. It gives us ideas to look for documents in places where we may not have ventured before. It obliges us to engage with opponents to agree which of those sources will be searched and which search terms will be applied. And it supplies the receiving party with new ammunition for complaining that a party has not complied with its obligations under the CPR. All this takes time and will undoubtedly make ordinary litigation more expensive.
There is only one effective solution to this problem and it is an uncomfortable one: abolish standard disclosure altogether. The Woolf reforms have shown us that the only procedural reforms that save costs are those that abolish process rather than add to it.
That is why the new regime being piloted in the Patents County Court is so interesting. Among a raft of other procedures curtailed or abolished, standard disclosure will not apply. Disclosure will only be ordered for specific and identified issues; and only if the evidential benefit justifies the cost. If these changes prove effective, they could be extended to all forms of litigation in the county courts.
Smoking gun
No doubt this will lead to injustices. The smoking gun that is occasionally uncovered by disclosure may remain hidden, but that is the price to pay in order to provide affordable justice for the vast majority of litigants.
Lord Justice Jackson rightly recognised that there should be no question of abolishing standard disclosure in large commercial cases (where huge disclosure costs will not necessarily be disproportionate to what is at stake). He endorsed a proposal for a new additional procedure (known as the "menu option") which will involve parties producing a report describing the nature and location of the documents that may exist and may be relevant and then meeting to agree what disclosure order should be made, all in advance of the Case Management Conference.
Worryingly, Jackson LJ has proposed extending the menu option beyond large commercial cases to all other actions. However well intentioned, he has missed a trick here. The result will inevitably be more costs as the parties pore over the ingredients, consider the menu and argue over what to choose.
Costs will only be saved when the default provision is no disclosure - the experiment in the Patents County Court should demonstrate whether this is indeed the case.
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.