Case management is key to the appropriate level of disclosure under the Civil Procedure Rules, says Julie Exton


In Nichia Corporation v Argos Limited [2007] EWCA Civ 741, [2007] All ER (D) 299 (Jul), a patent case involving Christmas lights and their 'invention', the Court of Appeal made comments of general application in relation to disclosure under the Civil Procedure Rules (CPR).



The rules, of course, no longer provide for an automatic duty of disclosure. Such a duty only arises if and when the court makes an order for it. Then, the normal order for disclosure is for standard disclosure, requiring a party to disclose only:



(a) the documents on which he relies; and

(b) the documents which -

(i) adversely affect his own case;

(ii) adversely affect another party's case; or

(iii) support another party's case; and

(c) the documents which he is required to disclose by a relevant practice direction.



Before the introduction of the CPR, the test under the rules was that any document 'relating to any matter in question' was discoverable. In the very well-known Peruvian Guano case, (1882) 11 (QBD) 55, Lord Justice Brett made it clear that 'as large an interpretation' as possible would be given to the words of the rule and that the 'documents to be produced are not confined to those which would be evidence either to prove or disprove any matter in question in the action.'



Now, of course, that is a much wider test than that for 'standard disclosure.' And it is at this point that Nichia has relevance for all litigators, not merely patent lawyers, because Lord Justice Jacob made very clear his view that 'the legal profession has been slow to appreciate this.'



He reminds us all that, following only a 'reasonable search' (CPR 31.7(1)), the disclosing party should, before making disclosure, consider each document to see whether it adversely affects his own or another's case or supports another party's case. It is wrong just to disclose a mass of background documents which do not really take the case one way or another. There is a real vice in doing so: it compels the mass reading by the lawyers on the other side, and is followed usually by the importation of the documents into the whole case thereafter - hence trial bundles, most of which are never looked at (a subject close to the writer's heart!).



He rightly scoffed at the idea that it is cheaper to make this sort of mass disclosure than to consider the documents with some care to decide whether they should be disclosed. It might well be cheaper at that stage but it is what he described as the 'downstream' costs caused by over-disclosure which so often are 'so substantial and so pointless.' Perhaps more importantly, Lord Justice Jacob was concerned that, in cases of massive over-disclosure, there is a real risk that the really important documents will get overlooked. As he memorably put it, 'where does a wise man hide a leaf?'



The introduction of proportionality into the rules has had an impact which needs to be recognised. 'Perfect justice' in one sense involves a tribunal examining every conceivable aspect of a dispute but 'even the adversarial system at its most expensive in this country has not gone that far.' The cost and time involved in such a system would make it impossible to decide all but the most vastly funded cases. So, a compromise is made: one makes do with a lesser procedure even though it may result in the justice being rougher. Put another way, better justice is achieved by risking a little bit of injustice.



The 'standard disclosure' and 'reasonable search' rules provide examples of this. It is possible for a highly material document to exist which would be outside 'standard disclosure' but within the Peruvian Guano test; or such a document might be one which would not be found by a reasonable search. That means that in the rare instance the 'right' result might not be achieved. However, in the vast majority of instances it will be, and more cheaply.



Lord Justice Rix agreed. He, too, feared that litigants and their lawyers were paying mere lip service to the change of regime from Peruvian Guano to standard disclosure. In his view, a reasonable search should be 'tailor-made' to the value and significance of the likely product of such a search. If the value of such 'secondary evidence' was not likely to be high, then the reasonable search should be correspondingly limited.



But he counselled against any 'no disclosure' rule. It would be against the interests of justice if documents known to exist, or easily revealed, which would harm a party's own case or assist another party's case need not be disclosed because of a blanket prima facie rule against any standard disclosure. What was infinitely preferable was to meet the concerns expressed by Lord Justice Jacob by a rigorous application of the rationale of standard disclosure.



All the judges emphasised the importance of proper case management. Lord Justice Rix suggests the parties and the trial court might wish to explore the desirability of limiting the search. Lord Justice Pill emphasises that the amount of disclosure required in particular cases will vary widely but that this should be achieved by case management and not by applying different standards in different types of cases. Consideration should be given to the needs of the particular case. Lord Justice Jacob had mentioned that 'intermediate positions might be possible.'



The lesson for all litigators can be found in a very helpful passage towards the end of Lord Justice Rix's judgment. He was 'concerned above all to emphasise that the switch from Peruvian Guano discovery to CPR standard disclosure should be taken on board by litigants and their advisers. Once attention is focused on the rationale of standard disclosure in the context of any relevant issue, it is possible to appreciate that it is those parties and their advisers who are in the best position to adopt procedures which are both commensurate and proportionate. Indeed, it is hard to think that even before launching proceedings... a claimant will not have carried out, in its own interests, such a review of its own documents as will in all probability have already met, or all but met, the requirements of a reasonable search for the purposes of standard disclosure.'



It might be thought that much of this is obvious. Unfortunately, however, it has not been happening. On the tenth anniversary of the CPR, it is about time the mindset changed.



District Judge Exton sits at Bristol County Court