REUTERS | John Kolesidis

À la carte or set menu? Disclosure options

Background

The courts have long expressed concerns about costs of disclosure as amongst the most significant costs of substantial commercial litigation. It was against this background that the old test of discovery (any document that was broadly relevant) was redefined by the Woolf reforms of 1999 to standard disclosure, limited, if it could be said, to documents that support or adversely affect any party’s case. Yet, even with the guiding principles of CPR 31.5 and the court’s powers to limit disclosure, the costs of standard disclosure frequently match disclosure of documents that would fall within the old test of discovery.

Jackson reforms

To this end, further reform by Jackson LJ in 2013 introduced a “menu” of six disclosure options at CPR 31.5(7). It was hoped that this would replace the presumption of standard disclosure. Standard disclosure remains an option, but the court may also:

  • Dispense with disclosure.
  • Order disclosure of documents on which one party relies, and a request for specific disclosure from the other party.
  • Order disclosure on an issue-by-issue basis.
  • Order that the parties’ disclose any documents which may contain information enabling advancement to one’s own case or damage to the other side, or which leads to an enquiry (in effect, the old discovery test).
  • Any other order that the court considers appropriate.

Whilst the courts recognise that standard disclosure is no longer a presumption, it is not clear that parties in large-scale litigation are availing of the alternative options, nor of the costs advantages that these can provide.

Positec Power Tools (Europe) Ltd v Husqvarna AB

In Postic Power Tools, a patent case in which obviousness was raised as an issue, and where it was argued that an order for issues-based disclosure would be appropriate, Birss J helpfully consolidated the authorities on disclosure within a patent context with regard to the options now available to parties under CPR 31.5(7). He ruled that standard disclosure, as one of six options at CPR 31.5(7), was no longer the default option, with regard to the overriding objective and importance of limiting disclosure in large-scale litigation. He refused to make an order for standard disclosure, which he found would not be worth the cost on the facts before him.

Barclays Bank Plc v Taberna Europe CDO I Plc and Ors

In Barclays Bank Plc, Barclays sought disclosure on an issue basis, relying on Positec Power Tools. The parties had agreed four issues to be in dispute, and Barclays argued that issue-based disclosure under CPR 31.5(7)(c) would focus the exercise. Taberna argued that issue-based disclosure may result in documents relevant to at least two of the four agreed issued be missed. On the facts, Newey J agreed that there was little to be gained from an issues-based order rather than standard disclosure. He found that, in practice, standard disclosure would be tied to the issues in any event. However, it remained preferable to frame the order for standard rather that issue-based disclosure at that stage of the litigation, rather than seek to agree a wider list of issues. He made clear, though, that notwithstanding his order, the parties were expected to contain the amounts spent on disclosure.

Tchenguiz v Grant Thornton UK LLP

Tchenguiz considered CPR 31.5(7) in the context of an application for a declaration of collateral use of documents and witness statements disclosed in previous proceedings. In the course of his judgment, Knowles J remarked that the general awareness of and use of the “menu” at CPR 31.5(7) needed to increase, so that parties may avail of the opportunities (and one might add, costs savings) that it offers.

Practice points

The implications of these authorities for commercial parties are that standard disclosure is no longer a default option. Furthermore, it should not be considered as such in the course of large-scale commercial litigation. Parties are advised to be familiar with the options available to them under CPR 31.5(7), and of the potential costs savings to be made. An extensive disclosure exercise may be more efficiently completed if the parties choose, for example, to disclose documents that allow for a line of enquiry under option CPR 31.5(7)(d). This could be less time-consuming and expensive than applying the test for standard disclosure. The parties may also suggest a bespoke disclosure order under CPR 31.5(7)(f), to be approved if the court considers it appropriate.

Yet Barclays demonstrates the practical approach of the courts to the question of disclosure and the looming shadow of litigation costs. It is clear that where an order of standard disclosure allows for full and proper discovery of documents pertaining to the relevant issues, the courts will not order otherwise. But even where standard disclosure is deemed to be the most appropriate option(as in Barclays), the parties will be reminded to take steps to limit timeframes, custodians and any other elements in order to keep the costs and the exercise within reasonable bounds.

The conclusion, however, is that there are, and will continue to be, many occasions in commercial litigation where ordering à la carte may well be a cheaper and better option than relying on the set menu.

39 Essex Chambers Hannah McCarthy

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