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.
At a time when there are various alternative means to resolve disputes, most notably international arbitration, that typically involve more limited disclosure obligations, the default standard disclosure option often adopted in English court proceedings has by comparison become onerous and costly.
To address these criticisms, in July 2018 the Disclosure Working Group presented a new set of disclosure rules (the “New Rules”) with the expectation that, if deemed a success, the New Rules will revise the current system (the “Existing Rules”). A pilot scheme for testing the New Rules commenced on 1 January 2019 in the Business and Property Courts of England and Wales. This includes the Commercial Court, in which many energy and commodities cases are heard. The scheme will run for two years, and will apply to all claims (with a small number of exceptions1) in these courts that exist or come into existence during that time.
The New Rules present an important and significant development for all parties litigating in these courts and reflect, amongst other issues, the following underlying themes:
- First, although standard disclosure goes beyond what is required in many cases, there is insufficient engagement with the flexibility already offered by the Existing Rules;
- Second, oversupplying insufficiently relevant documents can be just as counterproductive as failing to disclose relevant information; and
- Third, front loading for disclosure by thinking and communicating earlier in the matter, including engaging with the greater oversight and case management powers of the judiciary under the New Rules, should result in greater time and costs savings later in the execution of disclosure.
This alert summarises the key changes under the New Rules as compared to the Existing Rules, highlights the consequences of these changes, and identifies areas where industry participants may need to consider changes to their day-to-day business processes or the process adopted in anticipation of litigation when using the English courts to resolve disputes.
For in-depth commentary on the new English court disclosure regime, please download below the full version of this client alert.
- Including proceedings within the Admiralty Court, a competition claim as defined in Practice Direction 31C, proceedings within the Shorter and Flexible Trials Schemes and others.
Client Alert 2019-058
