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K13.4. The effect of the changes
| 416. | One risk posed by the changes, acknowledged by Lord Woolf, (Note 375) is the risk that the narrower initial obligation may spawn increased numbers of interlocutory applications for specific disclosure and attendant increases in cost and delay. However, after two years of operation, reports in England and Wales suggest that this has not materialized, possibly because of the court's discouragement of and sanctions against unnecessary interlocutory applications. (Note 376) |
| 417. | A more substantive concern is that the narrowness of the obligation may, in certain cases, mean that important documents do not come to light. Thus, the standard disclosure obligation compels disclosure only of documents which affect (not may affect) adversely a party's own case or support (not may support) the other side's case. Moreover, in excluding documents which may lead the other side on a train of inquiry resulting in the discovery of documents with the abovementioned consequences, it is at least arguable that disclosure is limited to documents directly relevant to the pleaded case. Thus, for instance, it is arguable that while documents bearing on breaches of duty particularised have to be disclosed, those which would clearly show other, unpleaded, breaches, do not. The precise scope of the new test awaits judicial decision. |
| 418. | Another concern is that unscrupulous litigants or unscrupulous lawyers may be more likely to get away with improper disclosure under the new rules. Plainly, as the ALRC puts it :- |
| "Parties may obstruct or subvert disclosure, refusing to provide or destroy or conceal relevant documentation which might have assisted the other side." (Note 377) | ||
| Litigants and lawyers with such proclivities exist under the present discovery regime. No doubt such improper conduct would also sometimes occur if the CPR approach were adopted. However, in the nature of things, it is extremely difficult to estimate the size of this actual or potential problem. It is possible that a dishonest party may find it easier to hide his tracks by emphasising the narrowness of the standard disclosure obligation but no evidence has emerged to suggest that the problem has intensified. | |
| 419. | Views differ as to whether the new disclosure rules increase or reduce costs. One suggestion (Note 378) is that costs are increased because the need to identify the directly relevant documents and to exclude the chaff requires greater discrimination and judgment and therefore engagement of more senior lawyers on the task. The contrary suggestion (Note 379) is that costs have been reduced because the process results in the disclosure and subsequent handling of fewer documents. The selection process is argued not to be a problem since the narrower obligation allows large categories of documents to be excluded without detailed consideration. |
Notes
| 375 | WIR, p 171, §35. <back> |
| 376 | An impression reported by Mr Andrew Jeffries of Allen & Overy, at a Conference on "Civil Procedure: Latest Developments and Prospects of Change" in Hong Kong on 8 June 2001. <back> |
| 377 | ALRC No 89, p 416, §6.68. <back> |
| 378 | Harry Anderson, Herbert Smith, Conference on "Civil Procedure: Latest Developments and Prospects of Change" Hong Kong on 8 June 2001. <back> |
| 379 | Andrew Jeffries of Allen & Overy at the abovementioned Conference. <back> |
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