Limiting Disclosure And The Cost Of Disclosure

Limiting disclosure and the cost of disclosure in relation to the Technology and Construction Court

[rtbs name=”technology-and-construction-court”]In many cases being conducted in the Technology and Construction Court, standard disclosure will not be appropriate. This may for any one or more of the following reasons: • The amount of documentation may be considerable, given the complexity of the dispute and the underlying contract or contracts, and the process of giving standard disclosure may consequently be disproportionate to the issues and sums in dispute. • The parties may have many of the documents in common from their previous dealings so that disclosure is not necessary or desirable. • The parties may have provided informal disclosure and inspection of the majority of these documents, for example when complying with the pre-action Protocol. • The cost of providing standard disclosure may be disproportionate. • In such cases, the parties should seek to agree upon a more limited form of disclosure, whether in one of the forms set out in Civil Procedure Rules 31.5 or otherwise, or to dispense with formal disclosure altogether. Where disclosure is to be provided, the parties should consider whether it is necessary for lists of documents to be prepared or whether special arrangements should be agreed as to the form of listing and identifying disclosable documents, the method, timing and location of inspection and the manner of copying or providing copies of documents. Where documents are scattered over several locations, or are located overseas or are in a foreign language, special arrangements will also need to be considered. Thought should also be given to providing disclosure in stages or to reducing the scope of disclosure by providing the relevant material in other forms. Electronic data and documents give rise to particular problems as to searching, preserving, listing, inspecting and other aspects of discovery and inspection. These problems should be considered and, if necessary made the subject of special directions. Furthermore, in many cases disclosure, inspection and the provision of documents in electronic form or electronic copies of hard copies may be undertaken using information technology. Attention is drawn to the relevant provisions in Civil Procedure Rules Part 31 and Practice Direction 31B: Disclosure of Electronic Documents A protocol for e-disclosure prepared by TeCSA, TECBAR and the Society for Computers and Law was launched on 1 November 2013 which provides a procedure and guidance in relation to these matters. the Construction and Engineering Pre-Action Protocol was developed in consultation with the judges of the Technology and Construction Court, and is likely to be ordered by the Technology and Construction Court if the parties have not agreed on any alternative by the time of the first case management conference. It is available on the TeCSA website. All these matters should be agreed between the parties. If it is necessary to raise any of these matters with the Technology and Construction Court they should be raised, if possible, at the first case management conference. If points arise on disclosure after the first case management conference, they may well be capable of being dealt with by the Technology and Construction Court on paper.