Discovery, Disclosure or Both?

26 July 2013 by James Morrey-Jones

Budgets, Cost Management, new processes….is this train going to stop? Note that I didn’t say ‘gravy train’, as this is about understanding and better practices, and is not a money spinning exercise. Back to the point, the train shows no signs of slowing! We are still going through the evolutionary stages of implementation and understanding, although the perception is that we should all be fully competent by now.

Costs need to be looked at more closely, with the end client in mind and with a greater degree of openness. As a consequence, Budgets need to be prepared, discussed with clients and other parties, and ideally agreed upon at the onset of proceedings. In line with openness, these need to be followed closely and monitored by the parties, not only for the courts but also for their respective clients.  All of this makes good sense, not only from a client’s perspective but also one of judicial prudence. The Processes (procedures / protocols / disclosure options) are articulated in the CPR but the industry is still finding its way around them and how, when and where they should be carried out for best practice.

For the majority, the changes to our civil procedures are becoming old news, if not the minutiae of how to implement of them. Today I looked at one of my ‘Linkedin’ groups to find a full score of requests for the Precedent H document complemented by a host of negative comments.

Remove all the dos, musts, don’ts and shoulds and what you have left is a very simple message: start to think about discovery and disclosure very early on in the process (and that includes thinking about the volume of data that will be required or is available), and communicate clearly between the parties and clients participating in the budgeting process. These two things will make it much easier to deal with the costs issue generally.

It may not have escaped your astute observation that I mentioned discovery and disclosure not only in the same sentence but also as part of the same set of processes. This was deliberate. The use of these terms together may appear alien to some and  confusing. I would, however, “put it to the house” that we are developing a hybrid process under the new rules within the CPR, whereby we start early on with “Discovery” to show us what we have, in order to make the decisions as to costs, budgets and most appropriate process  for the client, followed by “Disclosure”, the review and identification of documents to be exchanged with the other parties and receipt of the same.