PLC Construction blog: How does Jackson LJ’s option two for disclosure work in practice?

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Summary: The overwhelming practice in international arbitration is for disclosure to be governed by the IBA Rules on the Taking of Evidence in International Arbitration (IBA Rules). The IBA Rules’ disclosure requirements are equivalent to option two of Jackson LJ’s proposed menu of options for disclosure. In my view, experience of how the IBA Rules work in practice provides some useful lessons about Jackson LJ’s option two.

The overwhelming practice in international arbitration is for disclosure to be governed by the IBA Rules on the Taking of Evidence in International Arbitration (IBA Rules). The IBA Rules’ disclosure requirements are equivalent to option two of Jackson LJ’s proposed menu of options for disclosure. In my view, experience of how the IBA Rules work in practice provides some useful lessons about Jackson LJ’s option two.

Disclosure rules and the dispute 

Under the IBA Rules the parties disclose the documents on which they rely and may submit to each other a Request to Produce documents. Jackson LJ’s option two advocates limited disclosure of this type. As he noted in his preliminary report, limiting the disclosure obligation to those documents requested by the other party should “drastically reduce the number of documents disclosed in ‘heavy’ cases and the ensuing costs which result” as the parties would not “be under a duty to spend thousands… of pounds in searching out documents which may, just possibly, assist their opponents”.

I was recently involved in an international arbitration under the IBA Rules. The dispute in question was a high value delay claim regarding the general performance of the contractor throughout the life of a project. It encompassed a raft of complaints on both sides. There is no doubt that disclosure was a contentious and expensive process, but would it have been more straightforward (and cheaper) had the tribunal ordered standard disclosure under CPR Part 31?

Cost savings in the search and review phase? 

The IBA Rules are designed to prevent “fishing expeditions”. It is not simply a question of putting together a list of anything you might like to see. Article 3 states that documents need only be produced if:

  • The requesting party provides a narrow and detailed description.
  • They are reasonably believed to exist.
  • The requesting party explains how they are relevant to the case and material to its outcome.
  • The requesting party provides an explanation as to why it believes they are in the other party’s possession, custody or control.

A party putting together a detailed list of this kind must give considerable thought to what it really needs. Despite this, due to the wide range of issues in dispute, each side requested production of over 150 categories of documents. We used Redfern schedules to manage the process, as is common practice in arbitration.

Problems 

In the end, the process of searching for and reviewing the documents was not substantially reduced. There were several reasons for this:

  • Because the dispute related to every aspect of the contractor’s performance over the life of the project, we still had to review all the project documents and many of the client’s other documents.
  • The other side’s Requests to Produce were so numerous and wide ranging that we had to review everything to consider whether it fell into one of their categories of request.
  • The document review process was more complicated. We did not simply need to consider if a document was relevant, but also had to consider whether it was responsive to one of the particular requests made. When you are looking at a list of over 150 overlapping categories, this is a time-consuming process.
  • Actually giving disclosure was not simply a question of listing all the documents appropriately grouped. We had to indicate which request a document was responsive to. This, again, was a time-consuming (and therefore costly) process.

The final issue came during the hearing itself. A number of the other side’s requests for documents had been denied by the tribunal. However, during the course of the hearing, the other side asked witnesses about documents falling into these categories. This left the tribunal in a difficult position. Where a witness referred to a document, the tribunal sometimes reconsidered its original order for disclosure. Consequently, the parties effectively went through a further round of disclosure during the hearing!

Not a “one size fits all” solution 

In conclusion, my view is that Jackson’s option two could be very effective, if selected for a case where the issues in dispute are limited and clearly defined. However, in the context of complex, multi-issue construction disputes, the old CPR process of standard disclosure may offer a less complicated, more manageable and ultimately cheaper solution. This reinforces Jackson LJ’s view that there is no “one size fits all” solution.

This blog was first published by PLC Construction as part of our regular construction blog series in which we share our practical experiences of working in construction and engineering and give our opinion on the current and future legal developments that shape and will shape the industry. Please select the link for other PLC Construction blogs.

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