Should we make a move away from Standard Disclosure?

Posted on November 24, 2016

Disclosure centres upon the idea that parties should welcome a ‘cards on the table’ approach to Litigation. Essentially, this process allows both the Claimant the Defendant to fully assess their case, in light of strengths and weaknesses. Therefore, whether or not a given document enhances or hinders your client’s position, disclosure demands that those documents upon which you rely and those which run counter to your claim are provided to the other side.

Of course, a real and potential benefit of disclosure is that parties are encouraged to settle matters rather than allowing matters to continue to litigation. In this respect, the overriding objective of the Civil Procedure Rules can be observed.

In small value, uncomplicated cases, disclosure may be a straight forward task for lawyers to undertake. However, one must consider the onerous, time consuming and costly task of disclosure in the larger, more complex cases. This is particularly true with Standard Disclosure which is the usual Order made in respect of disclosure with Fast Track Claims and Multi Track Claims which involve claims for personal injury. Standard Disclosure is governed by CPR 31.6 and requires that a party discloses:

(a) the documents on which he relies; and

(b) the documents which –

(i) adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case; and

(c) the documents which he is required to disclose by a relevant practice direction.

In the remainder of Multi-Track Claims, whilst a court can order Standard Disclosure, this is not the courts default approach. Rather, the court will look at their options and decide upon the most appropriate course of action in light of the overriding object. The theory behind this is that lawyers can spend less time obtaining, looking through and providing documents to the other side. The changes with regards to Multi Track cases are as a result of the 2013 Jackson Reforms. This is known as the ‘menu’ approach where parties and the court can take a more flexible approach to disclosure. Here, parties or the court can decide upon appropriate disclosure. For example, a court may decide to dispense with disclosure entirely, or could order that parties disclose documents which they rely upon and request specific disclosure of documents from their opponent. Of course, standard disclosure can also be ordered. Importantly, with multi track cases and the ‘menu approach’, parties cannot ‘hide’ documents from the other party. Rather, they must file a report which sets out which documents exist.

The question posed therefore is whether there should be a move away from the default position of Standard Disclosure in Fast Track Claims and those Multi Track Claims involving claims for personal injury. Whilst Standard Disclosure can be a profitable exercise for lawyer, is it used to readily when the ‘menu’ approach could be more sensible? Is standard disclosure in these claims placing an unnecessary burden on both lawyers and their clients and would it be time and cost effective for parties and the courts alike to look at the disclosure actually necessary to deal with matters in a proportionate, fair and just manner?

Lord Justice Jackson speaking at the Law Society’s Commercial Litigation Conference on 10th October 2016 seems to answer this question in the affirmative, focussing upon the cost benefits in doing so. Jackson did not seem to suggest that reform was needed with regards to the law on disclosure. Jackson framed matters in terms of whether this change was a ‘culture change’ or a ‘rule change’. He said the rules already in place should be looked at and ‘used fully and more imaginatively’. Responding to Jackson, others said that Standard Disclosure is more about acting in the best interests of clients and that lawyers do approach standard disclosure proportionately.

There does not appear to be any suggestion that there will be reforms with regards to Standard Disclosure within fast track and multi-track claims involving personal injury. However, this is perhaps more ‘food for thought’ for lawyers, judges, claimants and defendants alike.


Background

Victoria studied Law LLB at The University of Birmingham. She completed the Legal Practice Course at Anglia Ruskin University in Cambridge, achieving a Distinction. Victoria joined Jefferies in September 2015.

In Work

Victoria is currently working within the Dispute Resolution department. She has been assisting the department with matters relating to Employment, Possession Proceedings, Debt Recovery, Will Disputes and Personal Injury.

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