Proposals for new disclosure regime for the Business and Property Courts

02 Nov 2017

On 02 November 2017, the Master of the Rolls, Sir Terence Etherton, announced the publication of a new draft rule for disclosure in civil proceedings in England and Wales.

This follows the formation, in May 2016, of a Disclosure Working Group in response to widespread concerns expressed by court users and the profession regarding the perceived excessive costs, scale and complexity of disclosure.  

Our litigation partner, Ed Crosse (supported by David Bridge and Kirsty Oliver) took a leading role in the Working Group, which was chaired by the Rt. Hon Lady Justice. The Group, comprising a wide range of lawyers, experts, judges, representatives of professional associations and users of the Rolls Building jurisdictions, was tasked to identify the problems and propose a practical solution.

Ed Crosse says: “As a representative of the London Solicitors Litigation Association, I had the privilege of helping to draft the proposed new rule, alongside Mr Justice Knowles CBE, Chief Master Marsh and Vannina Ettori, Legal Adviser to the Chancellor.  

"The Working Group's proposals essentially re-write and fundamentally change the current approach taken by the Courts and parties to disclosure in civil cases and represent one of the most significant reform proposals affecting our civil in recent years. The new rules will seek to preserve a party's ability to obtain an order for wide ranging disclosure of adverse materials - which is perceived as a key benefit of litigating in England and Wales - but only for appropriate cases. There are many cases where a more proportionate and targeted approach to disclosure is required and the current rules do not adequately provide for this.

"In addition, the existing rules were drafted to cater for predominantly paper-based disclosure; they are ill-suited to modern-day litigation where, with the proliferation of emails and other electronic data, the use of technology to assist with the disclosure review process is essential. The proposals contain a mandatory set of rules to structure and guide discussions around the use of technology."

Rt Hon Sir Terence Etherton, Master of the Rolls said: “Disclosure is one of the key procedural stages in most evidence-based claims. It enables claims to progress to trial and facilitates settlement. The ability to obtain an order for a party to disclose documents that are adverse to its claim helps to make litigation in this jurisdiction attractive. It is imperative that our disclosure system is, and is seen to be, highly efficient and flexible, reflecting developments in technology. Having effective and proportionate rules for disclosure is a key attraction of English law and English dispute resolution in international markets. I am very grateful to the members of the Working Group for all the considerable time and effort they have devoted to produce these proposals, which have involved engagement with a number of interested parties, and which are now to be the subject of wider consultation.”

The scheme has received the unanimous approval of the GC100 (an association of general counsel representing the interests of the FTSE100).

Rosemary Martin, Chair of the GC100 and General Counsel for Vodaphone commented: "The GC100 members are delighted that the Working Group has taken the task if revising the disclosure rules so seriously and with a much more radical attitude than many were expecting. If, collectively, we can get behaviours to change too (the difficult bit) then this initiative will be enormously valuable for the future.

To find out more about these radical new proposals, click here.

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