This is the second in a series of four articles about the rules and cases relevant to disclosure in England and Wales. The series is introduced here. Although this article is headed “eDisclosure developments” for consistency with the rest, there have been no new relevant developments in the rules themselves since the modifications made at the instigation of Lord Justice Jackson in 2013.
To repeat one thing from the Introduction, we are developing a new on-line resource to replace the one which disappeared on the last upgrade to www.edisclosureinformation.co.uk. This series is designed as an updater.
Without here purporting to give a full survey of the rules (that, as I say, is in the works) here are a few key elements, mainly ones which have been referred to in the more recent cases. The links are to the rule itself:
Rule 31.6 CPR – standard disclosure
The word “relevant” disappeared from this part of the rules in 1999. The test since then is whether documents are supportive of or adverse to the case of the giver or any other party. Have a look at Shah v HSBC Private Bank Ltd where the Court of Appeal said that the term “relevant” was fine for everyday use down to the moment when something turned on the precise construction of Rule 31.6 – “in cases of dispute it is important to stick with the carefully chosen wording of the rule”.
Rule 31.7 CPR – duty of search
This lists factors relevant to the reasonableness of search (there is an expanded section on this under the heading The reasonable search in PD 31B).
The factors really amount to the sub-components of proportionality – given a range of factors about the case and the potentially-disclosable data, what is worth doing?
Practice Direction 31B – paragraphs (8) and (9) – discussions between the parties
It is obligatory to have discussions before the first CMC on the use of technology and on the disclosure of electronic documents. The topics for discussion are set out both broadly and specifically (e.g. “the use of agreed software tools”).
Electronic Documents Questionnaire
In certain circumstances, the EDQ is to be exchanged “in order to provide information to each other in relation to the scope, extent and most suitable format for disclosure of electronic documents”.
Not everyone seems to have grasped the value of this – I am obviously partial, since I helped draft it, but surely it is helpful to know the depth of the pool before you step into it? I would go further and say that firms ought to have their own checklist which includes the EDQ terms but supplements them with other questions which the lawyers should be asking themselves, their clients and their opponents in advance of the CMC.
Rule 31.5 – various requirements added to the Rules in 2013
Rule 31.5(3) CPR Disclosure report
A disclosure report must be filed not less than 14 days before the first CMC. It includes the obligation to estimate “the broad range of costs of standard disclosure”, an obligation which is distinct from costs budgeting (although it would be odd if there was not some commonality between them).
The disclosure report must also say what directions are to be sought from the “menu option” (see below).
Rule 31.5 (5) and (6)
Not less than seven days before the first CMC “… the parties must, at a meeting or by telephone… discuss and seek to agree a proposal in relation to disclosure that meets the overriding objective”.
Anecdote suggests that this is rarely complied with, parties contenting themselves with lobbing emails across no man’s land in traditional style. For what it is worth (which is quite a lot) agreement in the Pyrrho case seemed a remote possibility down to the point when the parties and their technical experts got in a room to talk about disclosure.
Rule 31.5(7) CPR – the Menu Option
Nearly everyone continues to opt for standard disclosure, the sixth option in the menu. The options range from dispensing with disclosure entirely all the way through to old-fashioned Peruvian Guano train of enquiry discovery. In Tchenguiz v Grant Thornton, Mr Justice Knowles said:
This allows disclosure to be tailored to the case or issues 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.
Rule 31.5(8) CPR – Method
The court may at any point give directions as to how disclosure is to be given, and in particular –
(a) as to what searches are to be undertaken, of where, for what, in respect of which time period and by whom and the extent of any search for electronically stored document”
Subparagraphs (b)-(f) of this rule cover other disclosure management details.
The court can only do this, of course, if the options and their implications (including costs implications) have been explained properly.
There are other rules, of course, including those which are not overtly disclosure rules at all – Part 3 CPR contains general case management obligations which apply to disclosure as to everything else. Part 44 CPR covers costs implications which have more than once been invoked to dictate the outcome of what was otherwise a disclosure application.
In the next post in this series, I will consider some of the more recent cases, many of which turn on, or at least involve, some of the rules referred to above.