A feedback report on the disclosure pilot in the Business and Property courts published yesterday reveals the levels of frustration felt by some City litigators towards the scheme.
Lawyers branded aspects of the pilot ‘monstrously difficult’ and ‘hopelessly laborious’, with costs ‘triplicated’.
The report, written by Professor Rachael Mulheron of Queen Mary University, is based on feedback from lawyers at 44 firms – largely City heavyweights. It found that 85% thought the pilot had incurred extra costs; 71% felt it had increased the burden on the court; and only 6% believed it had successfully achieved a culture change.
Mulheron said the ‘Disclosure Review Document’ (DRD) required under the pilot was ‘perhaps the most vociferously criticised’ aspect of the scheme, with 88% of respondents asserting that it had increased costs. One lawyer referred to a DRD that had run to ‘hundreds of pages’, but had not even been looked at by the judge at the case management conference.
The requirement to identify a list of issues for disclosure also prompted strong responses, with lawyers branding the process ‘hopelessly laborious’ in complex cases, and citing examples of cases in which the list had run to more than 100 issues. One lawyer described the need for demarcation between the list of issues for disclosure and for trial as ‘a monstrously difficult task’.
Lawyers asserted that the pilot was particularly ‘unworkable’ in multi-party cases, as the need to choose a disclosure a model ‘for each issue, for each defendant’, makes the exercise ‘very complicated’. In one case, which involved 35 groups of represented defendants, there were 103 disclosure issues. ‘The claimant has had to create a very large spreadsheet just to record the relevant information. The maintenance of that spreadsheet is a full-time job for two junior associates’, the lawyer said.
On the issue of costs, one lawyer suggeted these had now ‘triplicated, when the parties have carried out: a partial disclosure exercise for Initial Disclosure, a further exercise for the purpose of identifying issues and costs for the DRD, and a final complete exercise when Model D (similar to standard disclosure) is inevitably ordered’.
There was generally a more positive response from lawyers in relation to the new requirement for initial disclosure of key documents, which was considered to promote a ‘cards on the table’ approach.
Mulheron’s report, published this week, was submitted to the Disclosure Working Group in February. It has informed a number of proposed amendments to the pilot, which will be put before the Civil Procedure Rule Committee in October or November. This includes guidance on how the DRD form can be simplified.
The report was based on feedback submitted to Mulheron by 29 November 2019, when the pilot had been running for 11 months. Mulheron observed that the tenor of the responses was frequently – sometimes ‘emphatically’ – negative, but noted that these were provided early in the life of the pilot, when it was too soon to know the overall costs impact of the scheme.
She added: ‘Several of those who have answered the (feedback) questionnaire have clearly done so because they had concerns, “beefs”, difficult experiences, and / or suggestions for change, and hence the statistics are undoubtedly reflective of that scenario.’
Firms that provided feedback for the report included Slaughter and May; Allen & Overy; Hogan Lovells; Herbert Smith Freehills; DLA Piper; Pinsent Masons; Addleshaw Goddard; Reynolds Porter Chamberlain; Stewarts; Shoosmiths; Taylor Wessing; Mishcon de Reya; Fieldfisher and Walker Morris; as well as the City of London Law Society and the Commercial Bar Association.
The full report can be read here.