Disclosure
‘Discovery’ will become ‘Disclosure’ on CPR Day. RSC Order 24 mutates into Part 31 – a user-friendly and concise exposition of the rules on disclosure of documents in litigation. Last week, we explained how documents on which a party relies must be appended to its statement of case. What else is new?
Goodbye Guano
Countless cases, the leading one being Peruvian Guano, had sought to define documents ‘relevant to the matters in issue’ for discovery purposes. No litigator could escape (or endure) the lengthy debates in court/correspondence which arose as a consequence. Now the test has changed.
Standard disclosure means you disclose documents (i) on which you rely; (ii) which adversely affect your or another party’s case; and (iii) which support another party’s case – broadly ‘I help you, you help me’.
In addition, documents must be disclosed where a relevant practice direction requires this. UK litigation is nearing the general approach in arbitrations and in European litigation. You are no longer automatically entitled to documents leading to a ‘train of enquiry’.
However, specific disclosure is available in certain circumstances; for example, where you can convince a court that there is a ‘smoking gun’.
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