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Thoroughly modern disclosure

A new pilot scheme intends to bring about a change in attitude to disclosure but its success will require commitment from all concerned, says Francesca Kaye

1 February 2019

Would Charles Babbage have invented the Analytical Engine in 1833 if he had known how expensive disclosure would become in the 21st Century?

By 1965 Gordon Moore observed that the processing power of computers would double every two years, Moore’s Law. And so it has.

Order 31 of the Judicature Acts and Rules of the Supreme Court 1883 provided rules for discovery of documents relevant to the issues in a case. Those did not change until the introduction of Disclosure in CPR Part 31 in 1999. Despite technological advances, Part 31 did not grapple with the issues of electronic documents.

By 2013, the cost of disclosure and the extent of electronic disclosure had grown exponentially and was seen as the most expensive part of litigation. The 2013 Jackson menu of disclosure options was intended to manage the scope and costs of disclosure. Unfortunately, it was not widely adopted and the default position remained standard disclosure.

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