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The Civil Procedure Rules at 20$
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Andrew Higgins

Print publication date: 2020

Print ISBN-13: 9780198863182

Published to Oxford Scholarship Online: October 2020

DOI: 10.1093/oso/9780198863182.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 03 August 2021

Proportionality and Search-based Disclosure

Proportionality and Search-based Disclosure

Chapter:
(p.161) 13 Proportionality and Search-based Disclosure
Source:
The Civil Procedure Rules at 20
Author(s):

Stuart Sime

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198863182.003.0013

This chapter will consider whether standard disclosure based on what Practice Direction 31A calls a reasonable and proportionate search continues to be the most effective and efficient approach to providing documentation to opponents in civil litigation. It will consider the reforms made to the rules on disclosure as recommended by Lord Woolf, and more recent innovations. An underlying problem is the explosion of documentation produced in the digital age, and the knock-on impact in the later stages in litigation on costs in cases where there has been extensive disclosure. The chapter will look at lessons from the past, the present rules, and whether there are more proportionate solutions. It will consider whether disclosure in fast track litigation is out of step with the position in the High Court, and some of the important ideas contained in the Business and Property Courts disclosure pilot. It will argue that the time has come to revert to a modern version of Lord Woolf’s original recommendation that search-based disclosure should be a second stage disclosure process, and confined to cases where it can be justified in accordance with the overriding objective.

Keywords:   disclosure, standard disclosure, disclosure pilot, search-based, fast track, proportionality

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