CD: What key defects in the disclosure regime of England & Wales were identified by the working group chaired by Lady Justice Gloster?

Fowler: There has been a perception for some time that the costs of standard disclosure can be excessive, particularly in cases where the value of the claim is low. The core issue is that there can at times be little correlation between the value of a claim and the volume of data that is required to be searched for an electronic disclosure exercise. The effect of this is that for smaller, simpler claims, it can be hard to strike a proportionate balance when it comes to cost.

Chesher: There was widespread dissatisfaction with the existing disclosure regime, which has long been viewed as a costly and inefficient part of the litigation process. The last reform in 2013 following the wide-ranging Jackson Review saw the introduction of a ‘menu’ of options for disclosure. However, the alternatives to ‘standard disclosure’ received very limited uptake from practitioners and the judiciary, leading parties to continue the tried and tested trawl through substantial volumes of documents, even though ultimately only a few lever arch files of documents – the majority of which were often identified at the outset of the dispute – might prove decisive at trial. The working party identified the need to tailor disclosure to the particular dispute and encourage better use of existing and future technology as being key to making disclosure a more focused, cost-effective and efficient process.

Jan-Mar 2019 issue


Addleshaw Goddard LLP