I must admit I have always been baffled by the decision taken by Lord Woolf in Access to Justice to rebrand the process of “Discovery”, which we all knew and loved and to call it “Disclosure”.
I don’t think you see the process called Disclosure elsewhere in the world and indeed, I have recently had reason to look at the new Irish Supreme Court rules for 2009 and see that they resolutely refuse to follow Lord Woolf’s lead and firmly call the process Discovery.
I am not sure what lies behind the change but the process described is still the most expensive and time consuming of all the litigation tasks.
Coupled with the reluctance to come to terms with new technologies and the increasing amount of documents for disclosure caused by emails, back up tapes etc., disclosure has become a nightmare for clients and lawyers alike.
I hope that some sensible recommendations for change will come out of the Jackson review on costs. However, a start could be made now if..
..the courts used the powers at their disposal in the CPR to strike out statements of case for breach of the rules.
How often do litigators comply with the rule which provides for cooperation on technology at an early stage and in any case before the first CMC?
My guess is, not many. I am supported in this view by a KPMG survey (published in 2007) that revealed widespread dissatisfaction amongst lawyers with the Rules on ED in the CPR. The survey also revealed that:
Only 17% of lawyers believed that the CPR had had a positive impact on litigation.
- 43% believed they had not had a positive impact.
- 56% believed the Rules had led to increased costs of litigation.
- 48% believed that Judges and Masters were ill equipped to make effective E disclosure case management decisions. Amongst those litigators heavily involved in e-Disclosure matters, this figure rose to 71%.
- Despite encouragement in the CPR that both sides to a dispute should co operate on e-Disclosure, 39% admitted that they had never met their opponent to discuss it.
- Of those who had met, 29% did not meet until, at or after the CMC!