A&O partner attacks discovery process

THE DISCOVERY process does little to affect the outcome of litigation in the vast majority of cases, according to a survey by Allen & Overy.

A&O partner David Mackie highlighted the findings at Lord Woolf's final seminar on Access to Justice.

Mackie told City lawyers and judges that the existing system was “unsatisfactory” before pointing to some of the problems.

Research carried out by the firm revealed that the cumbersome discovery process took up 20 per cent of the time that City lawyers spent on large cases, he said. And in one case, discovery took up 50 per cent of the time.

Mackie added that for smaller cases – under u50,000 – the picture was not as gloomy. Discovery took up about five per cent of the lawyers' time and was “an effective way of flushing out the issues”, he said.

The firm carried out a survey of 85 cases conducted within the firm. A key finding was that the discovery process substantially affected the outcome in only 20 per cent of cases.

Mackie said clients tended to be against agreements which limited the scale of discovery. And the system of court sanctions encouraged “too much” discovery rather than “too little”. The process for listing documents added to the problems, he said.

Lord Woolf is expected to report back later this year with his radical proposals for improving access to justice and rationalising the rules on procedure.