I recently spent several days rewriting my slides on eDisclosure in England and Wales, covering the rules, practice directions and the cases. The timing was occasioned by a request to give a three hour talk on the subject, and the intention was to use them as the basis for a set of video presentations on the whole thing. The website for that is largely drafted and it needs only some updating and the recording of me talking about it to go live.
Or so I thought until yesterday when the Courts and Tribunal’s Judiciary website published what they call Proposals for a new disclosure regime for the Business and Property Courts with a comprehensive set of drafts designed to update the whole rules regime affecting disclosure.
If I am a bit miffed by that, think of barristers Michael Wheater and Charles Raffin whose OUP book Electronic Disclosure Law and Practice has just been published with a foreword by Lady Justice Gloster describing the book as one which deserves to be “widely read as a standard text on the subject”. It was Lady Justice Gloster who led the working group which produced the new draft rule. At least I was aware that a new rule was pending when I updated my slides. Books have a rather longer gestation time (I know, because I was asked by the publisher to comment on its proposed structure in May 2014). The book, I should add, has plenty in it to warrant its purchase, both for the interim period before the new rules take effect and thereafter.
The announcement about the new draft rule reached me in the form of a tweet from Simmons & Simmons pointing to a page on their Elexica website. That succinctly describes the perceived problems, the proposed solutions, and the planned timetable hereafter, and I will leave you to read those for yourselves for now – I will, of course, come back to them and to the:
Briefing Note (or Guidance Note – it passes under both names if you find yourself confused as between the Judiciary link and the heading),
draft Practice Direction and
draft Disclosure Review Document
…shortly, probably after I return from Toronto where one of my panels involves a survey of comparative disclosure regimes, principally as between the US and Canada but with scope for bringing in developments elsewhere.
You may be thrown, as I was, by the fact that the Elexica page is headed “New draft rule” while the principal attachment is a draft practice direction. This is explained in the Briefing Note – for the purposes of the planned pilot, the scheme needs to take the form of a practice direction rather than the introduction of a new rule. After the pilot there will need to be “a process to assess its impact in practice, before implementation of any rule change.”
So I, and Wheater and Raffin, will get some mileage yet out of our work on the existing regime, and a lull in which to prepare new material. My own recurring themes are encapsulated in the blunt expression “RTFR” (“Read the F…. Rules”), in the need to be informed enough to articulate a proportionate plan to opponents and the court, and in the often overlooked CPR 3.1(2)(m) which permits the court to “take any other step or make any other order for the purpose of managing the case and furthering the overriding objective”. If the court can make any order, then you can seek any order not expressly prohibited elsewhere in the rules.
Those principles will remain true. Whatever else comes out of the changes, perhaps some judges, as well as lawyers, will now RTFR. If that had been done hitherto, we would have no need now for rule changes.