A complete overhaul of the disclosure regime and the impact on professional negligence claims…..

Friday 23 March 2018

Towards the end of last year a plan for the complete overhaul of the disclosure regime was set out by a working group headed up by Lady Justice Glover. It is envisaged that professional negligence claims will become harder to handle, particularly for defendants,  as a result of the proposed disclosure regime which is set to be piloted later this year.

The duties of the litigants and their legal representatives, will be expressly set out, including the duties to co-operate with each other, to disclose adverse documents (irrespective of whether an order to do so is made) and assist the court over disclosure. There will be a basic disclosure of key documents relied on by the disclosing party and it will be necessary for other parties to understand the disclosure requirements they have to meet, to be given with statements of a case.

Where extended disclosure is required, the working party have set out 5 models for the court to order, ranging from an order for no disclosure on a particular issue, through to the widest form of disclosure. Under the new regime this will require the parties to focus much more closely on what disclosure they are seeking from the pleadings stage onwards. This will require the parties to consider in detail what it will wish to see from the opponents rather than to focus on just their own disclosure. Anything other than basic disclosure will incur substantial costs of completing a list of disclosure issues and documents.

The new regime is designed to be reasonable and proportionate; the seeking party is likely to have to pull together detailed information about what the disclosure may cost, whereas a party resisting extended disclosure will have to do similar work in order to argue against the model. The courts will want to know about the cost of the disclosure stage before it can determine if the costs are appropriate.

Considering any imbalance between the parties, defendants usually have a file of all documents required for the court to determine a breach of duty, whereas the issues relating to causation and loss tend to be held by the claimants. They are not often in one file.

Under the new regime it could be that claimants may find disclosure as a substantially more onerous task, particularly if the action took place a long time ago, and argue for the slimmer disclosure models whilst seeking the defendants complete hard copy file.  The court will take into account what is reasonable and proportionate based on the party’s financial means as well as the ease of locating documents.

The disclosure pilot is set to start in October 2018 and is likely to pose significant challenges with grappling with disclosure early on, the costs of same, what is appropriate under the circumstances and what must be identified and disclosed as part of this process.

For clients who are utilising ATE insurance in their litigation, we can help to minimise the costs of disclosure in respect of the ATE premium by including a stage that allows for settlement pre or post disclosure, to reduce the client’s costs of insurance downwards.

Vanessa Andrews
Head of ATE Operations