Nothing new emerges from the judgment of Mr Justice Knowles in Tchenguiz & Anor v Grant Thornton UK LLP & Ors [2017] EWHC 310 (Comm) (22 February 2017), but it restates an important point relating to disclosure of documents in England and Wales.

The key paragraphs are 4 and 5. The emphasis by italicisation below is mine.

Disclosure

4.  The cost and complexity of the disclosure of documents in large-scale commercial litigation continues to attract attention and thought. As a result of the major review undertaken by Sir Rupert Jackson the Civil Procedure Rules now provide, by CPR 31.5(7), a calibrated “menu” of forms of order that can be made in relation to disclosure. This allows disclosure to be tailored to the case or issue in the case. It is a signal development, but awareness and use of it needs to increase so that the opportunities it offers can be made the most of.

5. The overriding objective, at the apex of the reforms led by Lord Woolf, is now found in other parts of the world too. It guides disclosure as it guides the rest of the CPR. Thus the selection from the “menu” at CPR 31.5(7) is to be made “having regard to the overriding objective and the need to limit disclosure to that which is necessary to deal with the case justly”. And strides continue to be made in relation to how the disclosure that is ordered, including disclosure of electronic documents, can best be carried out: see further CPR 31.5(8) and (9). But again, more could be made of the opportunities here.

In other words, the rules as they stand provide plenty of opportunities for limiting the scope of disclosure whilst still ensuring that the court has everything it needs to make a just decision. More importantly, perhaps (since few matters actually get to trial) proper disclosure, meaning enough but not too much, enables parties to make sensible and proportionate decisions about settlement without necessarily spending a fortune doing it.

To save you looking it up, CPR 31.5 (7) is as follows:

(7) At the first or any subsequent case management conference, the court will decide, having regard to the overriding objective and the need to limit disclosure to that which is necessary to deal with the case justly, which of the following orders to make in relation to disclosure –

(a) an order dispensing with disclosure;

(b) an order that a party disclose the documents on which it relies, and at the same time request any specific disclosure it requires from any other party;

(c) an order that directs, where practicable, the disclosure to be given by each party on an issue by issue basis;

(d) an order that each party disclose any documents which it is reasonable to suppose may contain information which enables that party to advance its own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences;

(e) an order that a party give standard disclosure;

(f) any other order in relation to disclosure that the court considers appropriate.

That last test is often overlooked – if the court can make any order, then you can seek any order which meets the overriding objective.

The former test, “standard disclosure”, is relegated to e) on the list, presumably to try and head off an assumption that it remains the default. Even if we accept that most parties and courts are likely to stick with “standard disclosure”, if only from comforting habit, there are plenty of opportunities within that to narrow disclosure whilst still abiding by one’s obligations. The definition of a “reasonable search” in Rule 31.7, for example, offers considerable scope to assert with justification that it is disproportionate to comply with a request for yet more disclosure.

The arguments about this, if there are arguments, should of course take place before the first case management conference – have a skim of the whole of Jackson’s amended Rule 31.5 (not just the menu in Rule 31.7(5)) if you are in any doubt about this. The key lies in cooperation and in the discussions between the parties which are not mere luxuries – they are actually required by the rules.

The judgment has a separate point about collateral use protections on documents handed over on disclosure which I will leave you to read for yourself.

As so often, I am obliged to Gordon Exall and his article on the judgment in the Civil Litigation Brief for drawing my attention to this judgment.

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