Those of you studying LPC will be familiar with the process of disclosure of documents (see page 33 of our LPC guide).
Broadly, if you’re going to embark on litigation you have to let the other side see relevant documents. The old process under CPR 31 required you to list all documents which had been in your client’s possession or control which were relevant to the case. This is a “warts and all” approach - you had to disclose unhelpful documents which cast doubt on your case along with all the lovely documents which helped your case. The other side had to do exactly the same thing.
Now, it’s not really a surprise that this is a very time consuming and expensive process. It can lead to shed-loads of documents being disclosed where relatively few have anything more than peripheral relevance to the matters in issue.
In response to concerns about the massive expense of the process, a two year long disclosure pilot scheme started in the Business and Property Courts in January 2019. Since this was only a pilot we decided not to include it in our 2019 guide and to see how things panned out. We’re pretty confident now that this pilot will be extended, and it seems likely that it might be extended across other courts. We thought that LPC students might like a quick heads up on the pilot. If you’re going into litigation practice you will have to know about this, but for the LPC check with your provider whether it’s included in the syllabus.
For the Business and Property Courts CPR 31 has been replaced. CPR PD 51 is now the relevant rule, it is premised on the basis of reasonableness and proportionality.
In very broad terms the changes are as follows:
Search-based “standard disclosure” is not an automatic entitlement.
Initial disclosure is the first step in the process. Initial disclosure is to be provided with statements of case (subject to some exceptions including agreement between the parties). It should not encompass more than around 200 to 1000 documents. This does include adverse documents not supportive of a party’s claim or defence. Efforts are required to check for the existence of such documents.
Extended disclosure is available.
A document is any record containing information in any form, deleted electronic information is specifically included.
Parties must take reasonable care to preserve documents, act honestly and search conscientiously for requested documents. They should avoid “document dumping” by producing irrelevant documents.
If you’ve already bought our 2019 guide and would like more detail on the update then get in touch and we’ll let you have our “oven ready” update which will be included in the 2020 guide.