MANAGING THE DISCLOSURE PROCESS
The ugly truth is that disclosure can be costly. It was soaring costs that instigated the reforms brought in by the disclosure pilot scheme, made permanent in October 2022 under Practice Direction 57AD of the Civil Procedure Rules of England and Wales (CPR). However, there are ways to manage the costs associated with disclosure, some of which can begin before litigation is even in contemplation. That said, one guarantee that can be made when it comes to the cost of the exercise is that getting it wrong will cost a lot more. Some recent judgments highlight this particular point, and parties should be mindful of what is required of them when it comes to disclosure.
Disclosure reforms
The origins of the recent reforms to disclosure extend back to 2015. Representatives from the Association of General Counsel for FTSE 100 companies, the GC100, broached the widespread concerns expressed by court users and the profession about the excessive costs required to produce often vast volumes of documents which may be of limited relevance to the underlying dispute.
What followed was a consultation process which concluded that disclosure under CPR Part 31 was not fit for purpose. Conceptionally, it is a regime grounded in a paper disclosure process. Paper had given way to data, and the size and complexity of the disclosure process was on a different scale.
A wholesale cultural shift and a change in professional attitudes is what was thought was needed to address the perceived defects in the disclosure process. The result was an entirely new set of rules which operated as a pilot in the Business and Property Courts from 2019 to 2022. Substantially, it is those rules that are now found in PD 57AD.
Jul-Sep 2023 issue
Greenberg Traurig LLP