Ignorance Isn't Bliss: Recent Trends In Disclosure: No Change?

The following article was originally published in The New Law Journal on 14th January 2011. The author is Richard Langley, Head of Litigation & Dispute Resolution at Bircham Dyson Bell.

In a recent lecture to the London Solicitors Litigation Association, Charles Hollander QC suggested that Lord Woolf's attempt to reduce the amount of disclosure had been generally ignored.

Under CPR standard disclosure, a party is only required to disclose documents a) on which they rely and b) which adversely affect or support any party's case. This was a radical shift from the pre-CPR position (governed by the Peruvian Guano case) where discovery extended to all relevant documents including documents which might lead to a train of enquiry enabling a party to advance their case or damage that of their opponent. However, in practice, most parties are still disclosing all documents of any relevance to the issues and the Court of Appeal has made some strong criticisms of solicitors for failing to change their ways.

In Nichia Corporation v Argos Limited [2007] EWCA Civ 741, Jacob LJ said (at [46]): "It is wrong just to disclose a mass of background documents which do not really take the case one way or another, and there is a real vice in doing so: it compels the mass reading by the lawyers on the other side, and is followed usually by the importation of the documents into the whole case thereafter - hence trials bundles, most of which are never looked at."

Charles Hollander suggested that the problem was the innate conservatism of solicitors. Surely that cannot be a sufficient explanation? The reason is far more likely to be that raised (albeit then scorned at) by Lord Justice Rix in the Nichia case (at [72]): "I fear that litigants and their lawyers are paying mere lip service to the change of regime from Peruvian Guano discovery to standard disclosure. It is suggested nevertheless that it is cheaper to look for and disclose everything, than to carry out the reasonable search required; and that even so the cost is likely to be enormous. I am reluctant to accept these suggestions, particularly in the absence of evidence, for they seem to me to fly in the face of the new regime."

It is unrealistic to expect a party to incur costs tailoring their disclosure in order to save their opponent the cost of reviewing it all. And to compound the problem, further costs are bound to be incurred when the opponent enquires as to why relevant documents appear to have been...

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