Reed Smith Client Alerts

Many contracts in the energy and natural resources industry provide for disputes to be resolved before the English courts. Industry participants select this forum for a variety of reasons including its reputation as an efficient and robust system, the quality of (specialist) judges, the value precedent case law provides and in some instances because of its neutrality in an international market. However, one feature of litigation in the English courts that has, increasingly, attracted criticism is the process of disclosure. This client alert summarises the key changes contained within the new disclosure pilot scheme and identifies areas where industry participants may need to consider changes to their day-to-day business processes in contemplation of litigation.

Authors: Karen B. Ellison Shareena Edmonds Vassia Payiataki Andrew Meads Elizabeth Farrell Anne-Marie Trachmann

Gavel and statue of lady justice

Disclosure as a concept varies greatly from jurisdiction to jurisdiction. In fact, many systems of law do not have mandatory disclosure regimes. For some foreign companies litigating before the English courts, it will be an anathema to be required to provide documents that are harmful to that party’s own case.

Further, many believe that disclosure is now more labour intensive and requires an ever increasing amount of time and costs. The volume of data to be processed in disclosure has steadily increased, with individuals now frequently sending or receiving hundreds of emails, texts or chats per day. Cases can involve disclosure of hundreds of thousands of documents. A system of rules that does not embrace or deal efficiently with the numerous, rapid digital and electronic forms of communication used in the commodities sector, for example, will likely be inadequate and unpopular with users. Inefficiencies in the disclosure process are also believed to result from too little communication between parties early in proceedings and from excessive searches being conducted due to insufficient focus on the specific issues in dispute.