The recommendations in Lord Woolf's interim report to the Lord Chancellor will send a shiver down the spine of any litigator who routinely deploys discovery "siege gun" tactics in the conduct of large cases.
It is well known that the existing rules of Order 24 provide the opportunity for the parties and their advisers to tailor the discovery obligation to suit their particular case. In theory, one can agree or seek an order from the court as to what is "relevant" for discovery, the timing of discovery and the matters in issue. But this system of self-regulation has not worked in practice – it is not part of our common law culture. To suggest to your opponent a dialogue on relaxing the discovery obligation either means you are going soft, or you have something to hide – or so the thinking goes.
Lord Woolf's new proposals would force better control over the timing and scale of discovery in fast and multi-track cases. Leaving aside the tighter supervision of discovery by the judge, particularly at the case management conference, Lord Woolf is targeting the relevance test. To this end he proposes the concepts of standard discovery and extra discovery.
Standard discovery, to apply automatically in both fast and multi-track cases, would include documents on which a party intends to rely, and documents of which he is aware and which materially adversely affect his own case or support his opponent's.
Extra discovery covers the luxuries, such as documents which do not fall within standard discovery but are relevant as part of the background to the matter.
Extra discovery would normally only be considered where it was necessary in multi-track cases, and even then disclosure of train of enquiry documents would be extremely rare.
The proposed change to the relevance test goes to the heart of the discovery problem. Other proposed changes relating to the scope, timing and conduct of discovery are also significant.
However, even if the rules can be changed, there has to be a culture change in order to implement them. Jonathan Isted is a manager at Freshfields.
Disputed deal to Lords
The House of Lords may have to probe a 1987 deal under which British and Commonwealth Holdings agreed to sell Quadrex Holdings the wholesale broking division of Mercantile House Holdings. The Law Lords gave leave for objections to be lodged to appeal moves by B and C over litigation to decide the level of liability of Samuel Montagu, Quadrex's merchant banker. The sale was based on representations from Montagu that Quadrex had funds to complete the deal. In April 1994 the High Court awarded damages to B and C against Quadrex and Montagu. An appeal against that decision was partly allowed on 10 April.
Sister challenges will
A will dispute is heading for the High Court. When bachelor William Menke died he left nothing to his sister. Now she is challenging his will on the basis that her brother was not of sound mind. She claims her brother was suffering from the insane delusion that she was careless and useless with money, had led an extravagant lifestyle, was ignorant of money matters, and was on the road to ruin aided by "rapacious gigolos".