Litigation Procedure: A Round-Up For Construction In-House Lawyers

Our pick of recent news and decisions on litigation and alternative dispute resolution procedures for construction claims.

If you would like more information on any of the topics below,

Proposals for new disclosure rules in the offing

The changes made to the Civil Procedure Rules (CPR) back in 2013 introduced a new menu of disclosure options to make the process more efficient and ensure that costs are kept proportionate to the value of the claim.

However, despite a disclosure menu, the introduction of electronic disclosure procedures and advances in supporting technology that allow a much quicker sifting of documents, most parties still opt for the traditional "everything but the kitchen sink" approach. "Standard disclosure" remains the default choice for most - a process that obliges parties to make a reasonable search for and disclose all documents that adversely support or affect both its own and the other's case.

In reality, the current disclosure regime is based on and more applicable to paper and not e-documents. It is simply not fit for the deluge of electronic data that most litigating parties face – particularly in the type of complex, document-heavy, claims dealt with by the Technology and Construction Court.

In 2016, Sir Terence Etherton, a former Chancellor of the High Court, set up a working party to address the widespread concerns about the perceived excessive costs, scale and complexity of disclosure. Recognising that disclosure is a key procedural stage for most evidence-based claims, Sir Terence said:

"It is imperative that our disclosure system is, and is seen to be, highly efficient and flexible, reflecting developments in technology. Having effective and proportionate rules for disclosure is a key attraction of English law and English dispute resolution in international markets."

The working party, chaired by Lady Justice Gloster, has now published a draft Practice Direction which, once in force, is intended to effect a "wholesale cultural change" including a digital approach to disclosure, a change in lawyers' attitudes to disclosure and a shift in the judiciary to more proactive case management.

The proposed disclosure scheme, set out in the draft Practice Direction and a draft "Disclosure Review Document" (DRD), will be tested in a two-year pilot currently planned to start in early spring 2018. This pilot will be mandatory: there will be no "opt in" approach as we've seen on some other procedural changes.

Advisory...