Jackson tells lawyers and judges to be proactive on disclosure

Lawyers must ‘act against their own interests’ and give greater consideration to new forms of disclosure, Lord Justice Jackson has said.

Speaking at the Law Society’s Commercial Litigation Conference 2016, the Court of Appeal judge told delegates that while standard disclosure can ‘help solicitors maintain a steady stream of income’, this must be limited for the public’s benefit.

Jackson LJ said that while ‘reform was not needed, existing rules must be used more imaginatively to benefit the public interest’ and a ‘culture change’ was needed.

‘If disclosure can be restricted, it can save on the costs involved, management resources, and management time.’ He added that lawyers should ‘think twice before agreeing standard disclosure’ while ‘judges should be more proactive in pushing counsel to narrow down the focus on disclosure or the scope of the exercise’.

On 1 April 2013 rule 31.5 of the Civil Procedure Rules was introduced to encourage different forms of disclosure. Jackson said the ‘intention of 31.5 is that standard disclosure should no longer be the default position’.

He added that ‘parties frequently agree standard disclosure, seemingly without considering whether other options may be preferable, and the courts accept their arguments’.

Various forms of disclosure have come to the fore since 2013, including predictive coding, and other forms of technology assisted review such as language detection software.

Earlier this year the first reported case on which predictive coding was ordered was Pyrrho, where Master Matthews set out ten reasons for ordering its use in that case.

In June 2016, the London Solicitors Litigation Association carried out a survey of its members which revealed that neither practitioners nor courts were making proper use of the available disclosure orders.

Commenting on the findings, LSLA president and a partner at Simmons & Simmons, Ed Crosse, said: ‘The onus must surely be not on the parties and their advisers to explore and agree a proportionate approach to disclosure in advance of the case management conference, but also on the courts proactively to challenge parties where they have failed to do so.

‘A more robust and challenging case management approach to disclosure by courts would be welcomed by many.’

Matthew Rogers is a legal reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @sportslawmatt