The Commercial Court has recently been mulling over feedback on the disclosure pilot, currently rolled out throughout the Business and Property Courts. The reception has apparently been positive, and we may see more permanent changes towards the end of this year. For now, we await formal publication of the feedback and any recommendations.

Our own experiences, though, have been more mixed. There is no question that disclosure risks getting out of hand in commercial cases: vast volumes of electronic material have long since added hugely (and often unnecessarily) to the costs of litigation.

But we wonder whether the (relatively) complex nature of alternative disclosure models is the way to go. All too often, we have seen the pilot lead to more costs and more time spent arguing about the generic approach to disclosure, rather than on specific documents related to the dispute. There are also issues with the timing of the steps under the pilot which, in large multi-party cases, can be challenging.

Perhaps it’s time to consider again the simpler model, used in other jurisdictions, where parties disclose in the first instance only those documents on which they rely. Further disclosure would then require a court application to show relevance.