Lower value claims may escape disclosure ‘sledgehammer’



‘Low to middle value’ cases could be exempt from parts of the disclosure pilot in the Business and Property Courts as part of a range of fresh changes to the scheme currently in the early stages of being formulated.

The Disclosure Working Group (DWG) is seeking input from the profession to feed into a new set of adjustments to the pilot rules to be put before the Civil Procedure Rule Committee in April.

DWG member Ed Crosse told the Law Society’s commercial litigation conference last week that ‘low to middle value’ cases were ‘an area for review’, suggesting that applying the full rules to this type of case may be ‘a sledgehammer to crack a nut’.

In an interview with the Gazette, Crosse cited the example of a claim worth £250,000 to £500,000, in which disclosure costs might only be £10,000 to £25,000 under the old regime. He said in such a case, it could be ‘disproportionate’ to require the ‘whole mechanics’ of drafting a list of issues for disclosure, producing a Disclosure Review Document (DRD) and matching disclosure models to issues. He added that the disclosure pilot should not form a barrier to access to justice.

Another idea under consideration is a ‘DRD lite’, which might apply to lower value cases, or those with a small data set. The shortened form could be ‘less burdensome and more proportionate to the disclosure exercise being conducted’, suggested Crosse.

A change to the disclosure rules applying to multi-party actions also looks likely. One option being considered is for docketed judges to take the reins and assist parties with disclosure at an early stage, disapplying the pilot where appropriate.

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The amendments may also address problems with the ‘overengineering’ of the requirements to marry each disclosure issue with a particular model, where parties are currently ‘creating unnecessary difficulties for themselves’, Crosse added.

The solicitor said the working group would be engaging with professional bodies in the coming months, so that if the pilot is adopted as a rule at the end of next year, ‘we’ve had every opportunity to make it as effective as we can’.



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