In a recent post, I linked to an update on the Courts and Tribunals Judiciary website about changes to the Disclosure Pilot Scheme.
Now Simmons & Simmons (whose disputes partner Ed Crosse is a member of the disclosure working group) has published a helpful post giving some of the reasons for the changes. Some are obvious. The idea that less complex cases need a less complex process needs no explanation. It perhaps did need emphasising that the Disclosure Review Document may be modified to suit the circumstances, and that it should be used “flexibly”. The distinction between the “list of issues for disclosure” and a “list of every issue in the case” has caused difficulty, and it makes sense to make amendments to reflect judicial commentary on the drafting as it stood.
Does anyone want to go back to Part 31 as it stood before the pilot? The article is surely right to say that the old rules are not fit for purpose. Should we realistically expect that a new process would spring from the working party’s first draft and satisfy everyone? We used not to have pilot schemes – the rules changed and we were stuck with them, for better or (quite often) worse.
Anyone who has sat and listened at a meeting of the Rule Committee will know that it is deliberately structured to give a voice to a wide range of voices. That is a strength, but it is also a recipe for compromise, and compromise often loses sight of the essentials in the struggle to obtain consensus (my own experience as an observer, many years ago, left me subliminally banging my head against the desk at the ability of a committee to miss the point in the struggle to reach any conclusion). Things have improved, I think, and there is no doubting the commitment of the working group.
We should be glad of their commitment, and of their willingness to seek out comment for or against their ideas. Disclosure itself, good rules, bad rules, or no rules at all, is increasingly complex and expensive.There is a difficult line to walk between the need for standardisation and simplification on the one hand, and the different expectations of varied parties on the other.
I have had many conversations over the years with people critical of the then rules who, when I have fought back, have accepted that parties who exercise no governance over their data but yet expect disclosure to be simple are deluding themselves. You want disclosure to be straightforward? Then sort your data out and get rid of that which is redundant, obsolete or trivial before you embark on litigation. Many of those who complain about formal disclosure are really complaining because they are having their information governance done by expensive lawyers facing deadlines.
Even within the select courts using the pilot, there is variety in the range of cases and of views. As the Simmons & Simmons article observes, cases subject to the pilot are still working their way through the system so that “reported cases are dealing with later and later stages of the process”.
New points will therefore arise, as well as those derived from the new changes. Keep sending in the comments, whether in favour of the changes or against them.