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The Burden of Disclosure by Alan Gough

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Anyone who has been involved in a civil case will know that the obligation of disclosure of documents – or “discovery” as it used to be called – is a burdensome process. Not only that but it takes an enormous amount of time, certainly in commercial cases, and in law anything that takes time costs money.

At present the Rules of Court govern disclosure. In broad terms, each party has to make a diligent search for all documents that are relevant to the case. Some of these documents may be against the interests of the disclosing party but they have to be disclosed nonetheless. Once disclosed the lawyers filter out privileged documents, i.e. legal advice and correspondence with their clients. Lists of the documents found are then exchanged and the documents are looked at – another laborious process – and further filtered to those strictly relevant for the court hearing.

This has long been a troublesome area of legal procedure. In England & Wales, as a result of widespread concerns over the excessive costs and complexity of this process, a working group established last year by the previous Chancellor of the High Court, Sir Terence Etherton and Chaired by Lady Justice Gloster, has proposed a new process and a new draft Rule for disclosure in civil proceedings.

This, of course, will not extend to the Isle of Man unless it is adopted here but if the pilot is successful then there will be some pressure to adopt the process in the Isle of Man and reduce civil litigation costs.

The proposals effectively do away with what has until now, been called Standard Disclosure. This will be replaced by a specific court order designed to suit the circumstances of individual cases.

The duties of the parties and their lawyers in relation to disclosure will be set out and there will be a general duty to co-operate with each other and to assist the court over disclosure, with all relevant documents being preserved.

One of the core duties of each party is the requirement to share known documents that are adverse to the disclosing party’s case. This duty must still be complied with, regardless of the type of order the court makes and even if the court makes no order. A new term of Basic Disclosure of key documents will be introduced. These are the documents which are relied on by the disclosing party and are necessary for the other parties to understand the case they have to meet. These documents will be disclosed with the Statement of Case under the new English proposals.

Generally, a search will not be required for Basic Disclosure. At present the parties and their advocates have to certify that a thorough search has been made. A search may be undertaken but it may be that basic disclosure will not be suitable in the larger cases but in moderate claims it will provide information to assist in an early understanding of the party’s position. It is hoped that Basic Disclosure of this sort will often be enough without the court having to order further disclosure. Under the Basic Disclosure principle a party is not required at the outset of a claim to disclose documents adverse to that party. After the close of pleadings that party will be required to list the main issues in the case for disclosure purposes and exchange proposals for any Extended Disclosure. There is then often a case management conference and the court will consider which of several models should apply to the particular case. The well recognised test of reasonableness and proportionality will be applied.

In the United States large corporations often faced with claims from smaller adversaries have been known to disclose “all the documents contained in a warehouse situated at ….”. This is designed to put the less wealthy party to a great deal of trouble and expense to find the documents which may assist in the claim. The new models proposed in England & Wales are as follows:-

1. Model “A” is no disclosure.

2. Model “B” requires disclosure of the documents on which a party relies. Adverse documents have to be included.

3. Model “C” adds to model “B” the facility for each party to request from the other any specific documents and to carry out a search for them.

4. Model “D” is what is presently Standard Disclosure and requires a reasonable search for documents.

5. Model “E” will be only used in exceptional cases. It extends the reasonable search required for Model “D” for documents that may lead to a train of enquiry that may support or adversely affect either side’s case.

None of this applies in the Isle of Man but as it is a litigation costs saving initiative if it is successful then it will likely be followed here in due course and result in a more streamlined process.