From January 2019 the Disclosure Pilot Scheme will be tested in the Business & Property Courts for a two-year period. The new rules aim to promote a shift in the culture of disclosure to ensure cases are dealt with proportionately and costs are kept under control.
Proportionality: it is a principle that litigators are supposed to keep at the forefront of their minds as soon as they find themselves doing any work that is remotely chargeable. It is part and parcel of the Overriding Objective, a notion that recognises the court’s limited resources and how costly access to justice can be.
Given its lofty standing, you would expect the guidance the judiciary gives to litigators on how to dispose of their cases proportionately to be well defined. Unfortunately, it is not and litigators find themselves unable to provide their clients with real certainty as to how much it will cost to bring or defend a claim. The problem is that proportionality depends not only on the value of a claim, but on a wide array of factors, meaning that no two cases can ever really be treated in the same way.
The lack of clear direction on proportionality extends to disclosure, where costs can easily escalate and efforts to budget are often a guessing game. Next year’s Pilot is the latest attempt to remedy the problem. The new rules are not a huge departure from what existed previously but they place more emphasis on the following principles which aim to combat the mounting costs of disclosure:
- Collaboration - the requirement for parties to collaborate is codified and they will be expected to use the Disclosure Review Document to reach a consensus on disclosure issues rather than resorting to adversarial and costly letter writing;
- The use of technology - as a means of reducing data volumes to make the process more proportionate;
- Accountability – parties will be expected to keep adequate records of how they have carried out their disclosure exercise and they will need to demonstrate pragmatic conduct;
- A clamping down on the disclosure of irrelevant material (“document dumping”);
- Sanctions for parties that fail to collaborate with their opponents and engage with the new rules.
Undoubtedly, the new rules are a step in the right direction, but it is unlikely that a “hearts and minds” approach will be the key to transformation. Litigators’ natural tendency toward, well, litigation, means that it will be very difficult for them to resist the urge to use the new framework to come up with new and inventive ways of getting one over on their opponents, with costs remaining a secondary concern.
It will be up to the judiciary to ensure they stringently apply the new rules, forcing parties to use technology where appropriate and making use of the sanctions available to them where litigators fail to get on board. If litigators are really going to be forced to play nice with each other they will need to be shown the consequences of failing to do so. This of course will require judges to fully grasp the capabilities and limitations of technology in eDisclosure to ensure they can rule on disclosure matters appropriately. If they do so, there is every chance the Pilot will have the transformative effect on the costs of disclosure that it aims for.