If there is one aspect of civil procedure that keeps lawyers awake at night (or if not lawyers, their clients), it is the sheer bulk and complexity of disclosure. It may be an exaggeration to say that the English disclosure regime is dysfunctional, but it certainly leaves a lot to be desired. The problem is not just the sheer bulk of disclosure required in an electronic age and the costs that flow from that. It is also the disruption caused to a business when document retention policies have to be suspended, old hard drives resurrected and thousands of files opened as part of a “reasonable search”. In addition to the mechanics of disclosure, there is also privilege to consider, of course, and the strict and sometimes counter-intuitive rules that have held sway in England for some 13 years now, since the Three Rivers litigation.
In both respects there is good news, though, which has coincidentally arrived in just the last few days. First, we learned that permission has been granted to appeal the restrictive High Court decision in Serious Fraud Office v Eurasian Natural Resources Ltd, which not only followed Three Rivers principles strictly, sticking to a narrow definition of “the client”, but also made it particularly difficult to claim litigation privilege over documents created in the course of a criminal inquiry.
The appeal is due to be heard by the end of October 2018, which is not as late as it could be, given the glut of cases working their way through the Court of Appeal. Hopefully a softening of the rules will be achieved there, but it is possible that the case will go all the way to the Supreme Court. That would be an excellent opportunity for the recently appointed President, Lady Hale, to show us that she is the new broom that sweeps clean; in this case, sweeping away the much-criticised law in Three Rivers. Lord Neuberger dropped heavy hints that he wanted to do that; maybe his successor has the same ambition.
The other piece of news that has just arrived is more substantial, and more likely to lead to real change. A working group chaired by Gloster LJ has released draft disclosure rules simplifying radically the ones currently set out in CPR 31. Standard disclosure is still there, as is old-fashioned Peruvian Guano or “train of enquiry” disclosure, where no stone is left unturned. However, neither is set to be the default position. On the contrary, the starting point is simply that parties should generally disclose the documents they rely on and (sensibly) any further key documents that opponents need in order to understand the case they have to meet. This initial step, called “basic disclosure”, is really just a beefed up version of existing early disclosure requirements (see paragraphs 6 and 7 respectively of the Practice Directions on Pre-Action Conduct and Statements of Case), but it is all that parties can take for granted. Beyond that, any form of “extended disclosure”, as it is called, has to be argued for at the case management conference. As before, there is a menu of options, now termed “‘models”. However, there is much greater flexibility, since models are chosen on an issue-by-issue basis. To facilitate the process, and ensure that parties really think about all the options and try to agree them, a new document called the “disclosure review document” (replacing the optional electronic disclosure questionnaire) passes between the parties in advance of the case management conference and is filled in by them jointly. The arrangement echoes what happens with costs management, where parties are now required to complete together a budget discussion report under CPR 3.13.
The proposals that the working group has come up with are imaginative and refreshingly radical. They may be tweaked in the months to come, but seem likely to become law in substantially their present form, first in a pilot scheme due to commence in the spring or summer of 2018, and later when they replace the bulk of current CPR 31.
But I have a couple of misgivings, which perhaps others share too.
First, the potential complexity of “Gloster disclosure” (if we can call it that) is off-putting. If Jackson LJ presented us with a menu of options, as it is usually referred to, Gloster LJ is offering a vast buffet. Choice and flexibility are good things, but if you have a long list of issues, each potentially with its own form of disclosure, you quickly end up with a range of choices that is very complex indeed.
My second misgiving is that, whatever model is chosen, parties are still obliged to disclose any documents that are harmful to their case, provided these are known to be within their control (or previously within it) and provided they are known to be harmful (paragraph 3.1(2) of the proposed Practice Direction). That is odd where there is no obligation to make a general search, which is the case with three of the five models; that is, the ones ranging from no (further) disclosure to disclosure on request. There is clearly a danger here that parties will turn a blind eye to any adverse documents that do show up. At the very least, parties may think twice before conducting an extensive search for documents on a voluntary basis. If you already have the material you need to launch your claim, and can perhaps instruct someone junior and unaware to pick out a few additional items to fill certain gaps, why risk opening the filing cabinet and peering inside yourself?
This dilemma is not new. A similar approach to disclosure was adopted in the rules of the Flexible trials scheme (paragraph 3 of Practice Direction 51N), which started in October 2015 and is still running in the Rolls Building courts in London. But the crucial difference is that that scheme was hardly if ever used, maybe for this reason, while I understand that the new disclosure pilot scheme will be compulsory. It will be interesting to see what court users make of it during the consultation period that runs to 28 February 2018. The working group itself was clearly in two minds on the point; see the reference in paragraph 11(vii) of their Briefing Note to there having been “much debate” about this duty to disclose adverse documents and the limitations of basic disclosure.