Why is Disclosure harder now?

The crisp new rules in Part 31 of the CPR were intended to make Disclosure cheaper and easier than was the case under the old Order 24 RSC. That ambition has been undermined by the enormous growth in correspondence caused by e-mail. Chris Dale looks at the implications for litigation.


Part 31.6 of the CPR sets out the obligations as to disclosure thus:

Standard disclosure requires a party to disclose only

(a) the documents on which he relies; and

(b) the documents which

(i) adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case; and

(c) the documents which he is required to disclose by a relevant practice direction.

Further sections define the duty of search, limit the occurrence of copies, and define what “control” means in the context of a party’s obligation to disclose. A ‘document’ is defined as meaning “anything in which information of any description is recorded” which is clearly a much wider definition than the conventional idea of paper.

This is a much tighter definition than the former requirement, which applied to all documents “relating to matters in question in the action” and which was treated by many as meaning “list everything which isn’t actually privileged”.

The new rules required the exercise of much more judgment as to whether any document or class of documents were to be listed, required that the client certify the accuracy of the list, and imposed costs penalties as much for over- as for under-disclosure.

Prior to the 1990s, there were natural brakes on the production of documents – dictation, secretaries and fax machines or envelopes, stamps and post-rooms were involved. E-mail transformed all that, and not just because it became easier to send an incautious sentence or two in the wrong place; you could copy, re-copy and forward it, send attachments to everyone in a flash and print a dozen paper versions. In 20 minutes a slightly amended version would come back and the process of re-duplication would start all over again. In between, the IT department would diligently back it all up.

Look back at the definition set out above from the rules as to what must be disclosed and as to what a “document” is. Certainly, the scope is limited to those documents on which you rely and which affect the case of any party and, one hopes that in most cases that will result in many fewer documents in the list than the old rule. But a “document” is anything which contains information; you have to find them first, make decisions about them, advise your client to certify that the list complies with the rules and be prepared to justify inclusions and exclusions, with costs penalties if you fail.

Of course, Disclosure in many cases involves nothing so complex. Many clients can point to a box of files and say with justification “everything on which we rely and which affects any party’s case is in here”. But if you are in doubt as to the possible implications of buried stores of potentially explosive material, read Co-Operative Wholesale Society v International Computers Ltd or at least those parts of it which relate to Disclosure.

There is another article available from this web site called Electronic Disclosure for Litigation Support which considers the practical implications of collecting all the potentially disclosable material. Software and support services are available, from us and others, to ease the burden of gathering it in, filtering, sorting and listing it.

The CPR is about to be supplemented by a Practice Direction which will make it compulsory, in many cases, to list and exchange documents electronically. In practice, the present rules cannot sensibly be complied with without some means of making an informed decision that you have properly complied with Part 31 of the CPR.