Breaking the disclosure deadlock
Trouble getting the other side to disclose their documents? Then it might be time to make use of the seldom-used Civil Procedure Rule 31.5.
There are many reasons why getting a speedy response from the other side is advantageous to the litigation process. However, it is often the case that once liability has been admitted, document disclosure is not forthcoming. This can lead to deadlock until the Court orders disclosure.
Why don’t parties disclose in a timely fashion? The more cynical amongst us could think that certain parties are abusing the process by not disclosing in a timely fashion to push the claim towards limitation and benefit from the increased costs that litigation brings with it.
But even if the cause is not such an abuse of the process, disclosure delays can mean that the defendant is unable to put forward a reasonable offer as many of the claimed items remain unsubstantiated.
A recent case brought into the spotlight the little used Civil Procedure Rule 31.5 (3). The district judge adjourned the Cost and Case Management Hearing (CCMH) due to the claimant’s failure to comply with this rule – an adjournment that could now lead to months of further delay. The Claimant was hit with the wasted costs of the CCMH and ordered to comply with Rule 31.5 (3) within 7 days, or face further sanctions.
Civil Procedure Rule 31.5 (3) places a duty on parties to serve a report, outlining which documents exist, where they are and the likely costs involved in giving standard disclosure. Whilst standard disclosure usually takes place within four weeks of the CCMH, if Rule 31.5 (3) is followed, the process could be sped up significantly. It also assists the parties in amending their cost budgets to reflect how much time is required in that phase of the budget to fully comply with disclosure, before the CCMH.
Our view is that this obligation should be placed on the parties much sooner than 14 days before the CCMH and instead should be at the same time as service of the Claim Form. At that point, the claimants solicitor will have undertaken a risk assessment of the likelihood of the claim succeeding and/or will have either been provided the documents to support that risk assessment, or been told by their client which documents they are in possession of to support their claim. To get hold of such a report, verified by a statement of truth, would certainly assist the parties in negotiating a settlement much quicker and possibly even avoid the need for the CCMH altogether. This surely has to be a win-win situation for both sides.
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