Open Door Disclosure in Civil Litigation

AuthorAndrew Higgins
DOI10.1350/ijep.2012.16.3.406
Published date01 July 2012
Date01 July 2012
Subject MatterArticle
OPEN DOOR DISCLOSURE IN CIVIL LITIGATION
Open door disclosure in
civil litigation
By Andrew Higgins*
Lecturer in Civil Procedure, Faculty of Law, University of Oxford
Abstract This article offers a defence of broad disclosure in civil litigation given
its value in helping parties enforce their legal rights or uphold the law.
Nonetheless there is an inherent tension between accuracy, cost and time in
determining disputes, and there are legitimate concerns that disclosure has
become too costly. The article argues that the primary disclosure obligation in
large cases should be to open one’s door to the other party. It would then be
incumbent on the party seeking disclosure to review an opponent’s files for
relevant documents. The party giving disclosure would have additional rights to
protect privileged and private information, including guarantees against the
use and further disclosure of such information. This model will promote
efficiency because it puts the decision as to how much to invest in disclosure
directly in the hands of the party seeking it.
Keywords Civil litigation; England; Disclosure; Costs; Legal professional
privilege; Right to privacy
he problem with disclosure is that it is important, sometimes decisive, in
achieving the right outcome in civil litigation, yet it is also expensive,
often very expensive. Thus while disclosure contributes greatly to
accurate adjudication and fairer settlements, its high cost undermines the value
of the very rights it is designed to protect.
There is an inherent tension between the competing requirements of accuracy,
cost and time in determining disputes. A balance must be struck that allows a
court to give judgment with reasonable accuracy within a reasonable time and at
doi:10.1350/ijep.2012.16.3.406
298 (2012) 16 E&P 298–322 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
T
* Email: andrew.higgins@law.ox.ac.uk.
proportionate cost.1If any one of these factors is given disproportionate weight, it
would jeopardise the courts’ ability to deal with cases justly.
While opinion is divided on whether the English disclosure rules strike the right
balance, there is general concern that disclosure is simply too burdensome in
large cases and has the effect of reducing access to justice for some litigants.2
However, finding the right means of reducing the costs of disclosure without also
eroding its forensic value to the litigation process has proved elusive. To date,
reform efforts have focused on trying to limit disclosure to documents that are,
rather than might be, important. This article advocates a proposal for reforming
disclosure that focuses not on what documents must be disclosed, but rather how
disclosure should be conducted and who should be responsible for conducting it.
The aim of the proposed reforms would be to maintain the substantial benefits of
disclosure in large cases, whilst better tailoring the disclosure process to the needs
of the parties to the instant dispute.
The proposal is that the obligation to disclose relevant documents should be
converted to a basic obligation to open the door to one’s opponent. To protect a
person’s right to privacy and legal professional privilege, this duty would be
supplemented by optional rights to quarantine irrelevant and privileged material.
In addition, the disclosing party would enjoy the existing guarantees against the
further disclosure or collateral use of any documents obtained during disclosure,
and a new guarantee against the use of privileged information. In this respect, the
model would provide arguably even greater protection to privileged information
than current law.
This model can make disclosure more efficient because the decisions about what
resources to invest in the disclosure process will be made by the parties based on
their own assessments of its costs and potential benefits.
Where open door disclosure would not create greater efficiencies, the court
should have the discretion to order disclosure by a different method. The article
sets out some of the situations where that may be the case.
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 299
OPEN DOOR DISCLOSURE IN CIVIL LITIGATION
1 As required by the right to fair trial and the overriding objective of the Civil Procedure Rules 1998
(CPR) r. 1.1.
2 R. Jackson, Review of Civil Litigation Costs: Final Report (TSO: London, 2010) ch. 37, para. 3.5, available at
<http://www.judiciary.gov.uk/NR/rdonlyres/8EB9F3F3-9C4A-4139-8A93-56F09672EB6A/0/jacksonfin
alreport140110.pdf>, accessed 22 April 2012.

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