Monday 8 August 2016

A warning from the High Court regarding the adequacy of disclosure processes

In the recent case of Vilca and others v Xstrata Limited and another 2016 [EWHC] 1824 (QB) the adequacy of a law firm's disclosure process was placed under scrutiny by the High Court.


The Defendant's solicitors had failed to disclose a relevant email exchange as part of their standard e-disclosure process. When the Claimant's solicitors discovered this omission, they questioned the integrity of the Defendant solicitor's disclosure process. This led to an application to the High Court whereby the Claimant asked the Court to order that disclosure be 're-reviewed' by an independent law firm or barrister not connected to the proceedings.


Foskett J held that the failure to disclose the relevant email exchange had been an error which was nonetheless made in good faith. He therefore concluded that an independent re-review was unnecessary and not in the interests of proportionality.


What is of interest to litigators are the obiter comments Foskett J made in his judgment. In his analysis the judge pointed out that, although unprecedented, he would be prepared to order a re-review of a disclosure process, which would be undertaken by an independent law firm. He confirmed that such a re-review would be appropriate if a law firm had clearly failed in its duty to perform an adequate disclosure process.


This is a warning shot across the bows to all law firms that are involved in litigation, especially as obiter comments often morph into future ratio decidendi. Huge embarrassment awaits any law firm that is ordered by the Court to have its disclosure re-reviewed by another law firm. As such, law firms must regularly review their disclosure processes and carefully monitor and check all disclosure, especially if undertaken by juniors or paralegals.


This becomes more important with e-disclosure as the majority of modern documents are in soft copy. Firms should regularly review e-disclosure software and providers and keep abreast of technology in these areas so as to avoid any public embarrassment which may lead to lost revenue and clients.



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