Ed Crosse is a partner at Simmons & Simmons and a member of the Disclosure Working Group headed by Lady Justice Gloster. At Relativity Fest in London I took part in a panel with him and with Sir Colin Birrs at which which we discussed the proposed new disclosure rule.
Afterwards, I talked to Ed Crosse about the proposals, starting with the question “Why now?”.
Ed Crosse said that two years or so ago, the GC100 (General Counsel representing the FTSE 100 companies) expressed concern to judges that there had been no real change in party and judicial behaviour in relation to disclosure despite the reforms of Lord Justice Jackson. The costs of disclosure remained disproportionate especially in mid-level cases. There were hints that big companies were thinking of looking to courts overseas to resolve their disputes.
That led to the establishment of the Disclosure Working Group which began by identifying aspects of disclosure which were seen to cause problems. These included lack of party engagement, absence of focus on the real issues, insufficient use of technology, and lack of robust case management by judges.
I asked Ed Crosse what practitioners and judges will first notice about the changes. Ed Crosse emphasised that the new rule will not do away with wide-ranging disclosure in the right cases. The ambition is to encourage a focused and proportionate approach. Only key issues will require the investment in searches, for example.
There will be new duties to cooperate with opponents and to use technology.
The proposals will build on the work of those involved in producing the Electronic Documents Questionnaire (of whom I was one) to make sure that firms of all types ask the right questions.
There will be a new set of disclosure options and a requirement to say which of them is most appropriate for the case. These will range from no order on an issue right the way through to Peruvian Guano discovery where that is appropriate e.g. in some fraud matters. Disclosure therefore might end up somewhere between zero disclosure and disclosure well beyond standard disclosure, but parties will have to justify old-style standard disclosure.
I asked Ed Crosse how we make sure that judges engage with the disclosure requirements. He said that there is a significant buy-in from judges – this is effectively a set of judge-led reforms. Once the rule has been approved by the Civil Procedure Rule Committee, there will be six further months for familiarisation and training so that everyone will be ready for the rules before its introduction.