Disclosure is an essential part of litigation and arbitration under English law as it usually provides both parties with access to the contemporaneous documents which support or adversely affect a party’s case. The exponential growth in recent years of the number of electronic documents created during the course of a project has increased the size and, as a result, the cost of the disclosure exercise. Technology has developed to assist with the disclosure exercise, and a decision in the High Court in 2016 has approved the use of such technology thereby providing parties with ways to limit the cost of electronic disclosure.
For anyone who has been involved in a large disclosure exercise, including the clients who foot the bill, it should come as welcome news that the Lord Chief Justice, Rt. Hon. Lord Thomas of Cwmgiedd, indicated in his report to the UK Parliament in November 2016 that the judiciary is working with lawyers to consider the best approach to electronic disclosure, particularly in light of the first decision allowing the use of predictive-coding-assisted disclosure, Pyrrho Investments Ltd and anor v. MWB Property Ltd & Ors (“Pyrrho”), and that further amendments to Civil Procedure Rules (“CPR”) Part 31 are being considered. At this stage, the extent of the possible changes is unclear as Lord Justice Jackson, in his speech at the Law Society of England and Wales’ Commercial Litigation Conference a month earlier, indicated that he does not recommend any further reforms of the CPR but suggests greater use of the existing rules.
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