On 1 April 2013 the reforms designed by Lord Justice Jackson to tackle the huge cost associated with civil litigation will come into force as the Civil Procedure Rules (CPR) are updated.
To halt the increasing costs of disclosure, exacerbated by the exponential growth in the volume of electronic data, two key reforms will be enacted. The first will be a ‘menu option’ of possible disclosure orders and the second will be the submission of a disclosure budget prior to the first case management conference (CMC).
Changes to Standard Disclosure Requirements – the Disclosure Menu
The presumption in favour of standard disclosure for parties to larger scale commercial disputes will be removed (except personal injury claims) and will be replaced by the ‘menu option’.
The court will have to choose from the menu one of the following orders:
- To dispense with disclosure.
- To disclose documents on which a party relies, and request any specific disclosure required from the opponent.
- To disclose documents on an issue by issue basis.
- For disclosure on a “train of enquiry” basis.
- For standard disclosure.
- Any other order the court considers appropriate.
This last option illustrates the flexibility the court will be given to find the most appropriate and cost-effective method. It will also, at any time, be able to provide directions about disclosure such as the types of searches needed, the format of documents and whether disclosure should be a single or staged process.
The second key change is that the CPR will now require that each party file and serve a report which estimates the costs that could be involved in giving disclosure in the case. That report will need to be made 14 days before the first CMC and must contain a statement of truth.
Significantly, if the costs of disclosure exceed this budget, the successful party may not be able to recover the excess from the other side. Also, if the budget is considered excessive it may not be completely recoverable.
With the court being given greater powers to control disclosure, and with the possible penalty for exceeding your own disclosure budget, parties and their lawyers need to be more prepared than ever for litigation and know exactly what documents their case relies upon and how these can be procured as cost effectively as possible.
As with all new developments, it remains to be seen exactly how these new rules will be implemented but what is clear is the added importance of correctly assessing what disclosure will be required and how it will be obtained, as early as possible.
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