Disclosure in England and Wales
Sep 07, 2010 QuickCounsel Download PDF
By Deborah Blaxell, Epiq Systems Limited
The procedural code for the County Court, High Court and the Civil Division of the Court of Appeal in England and Wales is set out in the Civil Procedure Rules (CPR) and Practice Directions (PD). Rule 31 of the CPR and the Practice Directions to it deal with the "Disclosure and Inspection of Documents."
Meaning of "Document" and "Disclosure"
"Document" is defined at Part 31.4 of the CPR as anything upon which information of any kind can be recorded. With the increasing importance of electronically stored information (ESI), the definition of "document" has been further extended, at Part 2A.1 of the PD, to include:
Disclosure of a document takes place when a party confirms that a document exists or has existed. Once the document has been disclosed, the party to whom the document is disclosed has a right to inspect the document except where:
Types of Disclosure
1. Standard disclosure: Unless otherwise ordered by the court, an order to give disclosure is an order for standard disclosure. Standard disclosure refers to a requirement that the disclosing party discloses the documents which:
The number of documents which such an order might include can be extensive and, on occasion, lead the parties to incur substantial costs when reviewing the documents. This in turn can result in the costs of disclosure proving disproportionate to the value and/or legal significance of the claim. Accordingly, the courts are increasingly concerned with ensuring that the parties to disputes do not incur disproportionate costs.
2. Limited disclosure: The court may choose to limit disclosure, for example, to a specific issue, specific timeframe, or to specific custodians.
3. Agreed disclosure: The parties may agree in writing to dispense with or limit disclosure.
The Duty of Search
In accordance with Rule 31.7 CPR, when giving standard disclosure, a party is required to make a reasonable search for the relevant documents. The factors involved in deciding whether or not a search is reasonable include:
In conducting the search, the PD to Rule 31 establishes that the parties must bear in mind the overriding principle of proportionality and by way of example states that it may be reasonable to decide not to search for documents coming into existence before some particular date, or to limit the search to documents in some particular place, or to documents falling into some particular category. Moreover, the PD to Rule 31 confirms that in relation to ESI, it may be reasonable to:
Lord Justice Jackson has undertaken a Review of Civil Litigation Costs culminating in his Final Report in January 2010. In his report he confirms the importance of retaining proportionality in the search for, and disclosure of, documents and has proposed that a new 'menu' of disclosure options be introduced in relation to (a) large commercial and similar claims and (b) any claim where the costs of standard disclosure are likely to be disproportionate. If his recommendation is followed, there will be more scope for the parties and the courts to reach sensible and proportionate decisions about the ambit of the requirement for disclosure, based on the circumstances of each case.
Procedure for Disclosure
Rule 31.10 CPR confirms that:
Where a party has a right to inspect a document, the party must give the disclosing party written notice of his wish to inspect it and must be allowed to inspect the document(s) within seven days of the request. The party may also request a copy of the document, provided that the party agrees to pay reasonable copying costs.
Disclosure of Electronically Stored Information (ESI) and the Duty to Cooperate
The Practice Direction to Rule 31 CPR establishes a requirement for parties to discuss matters which may arise relating to the search for, and preservation of, electronic documents prior to the first case management conference. It requires the parties to share information about the categories of electronic documents within their control, the storage systems on which they are held and the document retention policies. Moreover, a new Practice Direction ("the new PD") was approved on 16 August 2010 and will come into force on 1 October 2010 (PD31.B). . The purpose of the new PD is to "encourage and assist the parties to reach agreement in relation to the disclosure of Electronic Documents in a proportionate and cost-effective manner." (PD 31.B.2) The new PD will apply to proceedings that are (or are likely to be) allocated to the multi-track (the allocation of proceedings to small-track, fast-track or multi-track is determined by the court in accordance with Rule 26.6). Where it applies, the new PD will require the parties to discuss the disclosure of electronic documents including:
Agreement and cooperation are not usually terms associated with the adversarial process but the legislation and the courts are pressing litigants to adopt these measures. The courts are being encouraged to enforce their powers of Case Management more rigorously, imposing costs sanctions in the event that parties fail to adhere to the requirements of the new Practice Direction.
Lord Justice Jackson recognized that e-disclosure is "inevitable in cases where the parties hold the relevant material electronically. For the parties to print out all of the material and then exchange it in hard copy would often be impracticable. With all but the smallest volumes of material, that course would not be cost effective. Thus in cases where e-disclosure is a consideration, it is often a practical necessity rather than an optional course". If the parties are unable to resolve any disagreements, or have any difficulty providing this information, the court may order, at the first Case Management Conference, that the parties exchange the Electronic Documents Questionnaire (set out in the Schedule to the new PD), in order to provide information to each other in relation to the scope, extent and most suitable format for disclosure of Electronic Documents in the proceedings. The aim of the questionnaire is to enable all parties to have the necessary information in a structured format, enabling the court and the parties to better judge whether disclosure of all or part of the ESI is proportionate to the matter in hand.
Case management Conferences are used by the courts to: (1) exercise their broad case management powers, (2) fix case management directions, and (3) if necessary, review the litigant's compliance with previous directions.
The practice and procedure relating to disclosure in England and Wales is developing rapidly to reflect the significant changes in the nature and amount of documentation which businesses and individuals now generate. Increased use of email and other forms of electronic communication have lead both to significant changes in the way businesses and individuals communicate with each other and a dramatic increase in the amount of electronically stored information which exists. This in turn requires more active case management by the judiciary to ensure the proportionality of searches for documents, and particularly those which are stored electronically.
Additional ACC Resources
ACC Resource Library - Article
ACC Resource Library - ACC Docket
ACC Resource Library - Primer
ACC Resource Library - Program Material
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