10 December 2018 - Article
1. Disclosure will no longer be so wide ranging
The standard approach to disclosure that has been in place since 1999 will be replaced with a tailored approach. The scope of disclosure will be limited to what the parties and the court agree is appropriate to the value and complexity of the case. This will require parties to exchange information about available documents much earlier in the case but it should enable the parties to limit the cost of disclosure in many cases to more proportionate levels.
This approach brings English civil procedure closer to the civil law tradition and to recent developments in the international arbitration field where tailored disclosure is encouraged in order to reduce costs and limit “fishing expeditions” where huge amounts of time and costs are often expended in seeking documents from a counterparty.
In many commercial cases, new court rules will require the parties to prepare detailed budgets of costs early in the case. The court will have the power to actively manage the costs, and if it does so, the parties will have to run the case according to their budgets or seek the court’s approval for any variation. The budget will act as a limit on recoverable costs.
3. Compliance with court orders
Stricter compliance with court orders and the court timetable will be enforced. Repeated disobedience of court orders will be less likely to be forgiven and offending parties will be at risk of having their case struck out or an immediate costs penalty imposed.
These changes form part of a wider reform of the civil justice system England that will alter the way commercial cases are funded and resolved. Although they inevitably introduce some uncertainty as the new rules settle down, the prospects are there for those who genuinely want a swift and cost effective resolution to their disputes as it may make litigating a more affordable option.