25 Jan 2023

'An unnecessary battleground' - senior judge speaks out on new disclosure rules

Sir Julian Flaux has sent a strong message that parties and their legal advisers must make a real effort to cooperate on disclosure, writes Natalie Osafo

Photograph of Sir Julian Flaux against a backgrop of law books

If opposing parties in litigation cooperate on disclosure as opposed to turning it into an “unnecessary battleground”, they will both benefit.

This was a key message of a lecture Sir Julian Flaux, the chancellor of the High Court, gave on 18 January on the future of the new regime for disclosing documents in legal proceedings in business and property cases in England & Wales, Practice Direction 57AD. 

The practice direction became a permanent rule in October 2022. This followed a four-year trial of the rules in response to concerns raised by GC100, the association of general counsel and company secretaries working in FTSE 100 companies. Those concerns included the exponential growth in digital data resulting in the disclosure of enormous volumes of often-irrelevant documents, the lack of structure and guidance in the former rules, and parties and their lawyers adopting a combative approach to disclosure. 

The chancellor discussed how the new disclosure rules are intended to operate, focusing on the central themes of structure and cooperation. He explained the framework the practice direction provides to structure the parties’ discussions on disclosure and ensure a thorough and consistent approach across cases. 

The parties must complete a jointly agreed Disclosure Review Document recording their discussions and proposals for the disclosure, which the court refers to when deciding what disclosure to order at the case management conference. Many practitioners struggle with this, with some approaching the process as what the chancellor described as “an unnecessary battleground”.  

Sir Julian Flaux’s suggestions for completing the form included:

  • Keeping the list of issues for disclosure against which documents will need to be disclosed concise.  
  • Accepting there are different ways of drafting the disclosure issues that achieve the same objective.
  • Not overcomplicating the disclosure exercise when selecting disclosure models (the models determine how wide or narrow the categories of documents to be disclosed are).  

The chancellor emphasised the importance of the parties and their legal teams engaging more collaboratively. This requirement existed before the new practice direction but was being ignored.  

As litigation is adversarial and the opposing party is often regarded as the ‘enemy’, cooperation might be perceived as a sign of weakness. However, the chancellor explained why cooperating on disclosure to assist the court is beneficial. “These are the things that avoid waste, delay and expense. They do not dilute the quality of adversarial engagement; in fact, they help to focus that engagement and make it effective,” he said. 

The chancellor explained that parties should only approach the court for assistance after making a genuine effort to resolve any issues between them. Flaux considered several advantages of the new practice direction, including increased use of technology to ensure the disclosure exercise is reliable and efficient and a fundamental cultural change about disclosure. He concluded: “Our legal system has a hard-won reputation for fairness, and in my opinion the proper management of the burden of disclosure, which the practice direction seeks to achieve, can only enhance that reputation, nationally and internationally.” 

The chancellor’s lecture contains helpful guidance and sends a strong message that the parties and their legal advisers must make a real effort to cooperate on disclosure and comply with the practice direction in good faith. They must be prepared to call or meet to iron out any issues between them rather than rely on letters and emails.   

Another important takeaway is that in contrast to other aspects of litigation, disclosure should be approached as a negotiation rather than a battle. The court’s guidance on this is clear, and parties who ignore it risk being sanctioned.  

A video recording of the chancellor’s lecture is available here, and a written copy of the address will be published on the UK Judiciary’s website shortly.  

Natalie Osafo is a commercial disputes lawyer at litigation firm Stewarts and a committee member of the London Solicitors Litigation Association

 

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