Disclosing important documents: key differences between Scotland and England & Wales

Court actions north and south of the border can be different in many ways and one of the main contrasts lies in the production of documents relevant to a case.

The common perception in Scotland is that the wide-ranging ‘cards on the table’ approach to English ‘disclosure’ leads to vast quantities of unnecessary documents being produced, with correspondingly increased and unnecessary legal costs. The Scottish system largely avoids this pitfall, but has the potential drawback of allowing relevant documents to go undiscovered if the recovery process is not carefully managed.

In recognition of the costs escalation associated with the English disclosure process, a revised disclosure regime is currently being piloted in the Business and Property Courts, having begun on 1 January 2019 and continuing for a two-year period. Just over six months on since this process started, let’s look at the key jurisdictional differences in this area of litigation.

Recovery of documents in Scottish litigation – the targeted approach

There is no automatic obligation on parties in Scotland to disclose evidence unless ordered to do so by the court. This often comes as a surprise to English lawyers who are used to operating under the premise that full ‘warts and all’ disclosure is required at an early stage of any litigation.

Although there is no automatic disclosure in Scotland, parties must disclose documents that they incorporate into their pleadings. They also have to lodge in court any documents they intend to rely on to argue their case.

Unlike in England and Wales, these obligations result in parties only presenting documents that support their case. In Scotland, lawyers have to work a bit harder to get their hands on documents that will support their case, but which are in the possession of the opposing side.

The normal procedure in Scotland is to lodge a motion for ‘commission and diligence’ seeking production of documents that fall into categories identified in a ‘specification of documents’. This is a far more targeted approach to the issue than the traditional English procedure.

The documents that can be recovered must be relevant to issues which are identified as being in dispute in the pleadings. A court will not order production of a list of documents going beyond what is necessary and it will not allow ‘fishing expeditions’; a term commonly applied to an overly broad list aimed at unearthing a wide range of documents, in the hope they might hint at new or further arguments.

The drafting of an effective specification of documents has become something of an art form in itself, with a fine balancing act to be played between the restrictions on what can be recovered, and the desire to obtain as much useful information as possible.

There are formal procedures to enforce the production of documents, but the practical reality is that more often than not parties comply voluntarily, often after a bit of negotiation over the precise terms of the specification of documents.

Recovery of documents in litigation in England and Wales – the catch-all approach

In England and Wales the fundamental position is generally that parties have to disclose any documents in their possession which they rely on, or which either damage their case, or support another party’s case.

This is called ‘standard disclosure’ and it has the admirable aim of ensuring all the relevant evidence is before the court and the parties are put on an equal footing at an early stage in the litigation. In theory this should enable disputes to be settled at an early stage, but the practical reality is that it often leads to unworkable quantities of barely relevant documents being disclosed. This has been criticised in terms of its impact on litigation costs.

The disclosure pilot scheme – a suitable compromise?

In answer to this criticism a two-year disclosure pilot scheme in the Business and Property Courts in England and Wales commenced on 1 January 2019.

The pilot scheme is complex but, broadly speaking, disclosure under the scheme is split into ‘initial disclosure’, where the parties produce documents on which they intend to rely, and ‘extended disclosure’, where the court orders further production of documents, to an extent which is appropriate to a particular case.

The extended disclosure options are set out in five ‘models’ which range from no further disclosure at all, through to an extensive search-based disclosure process. Model C, which forms the middle ground of extended disclosure, appears to be similar to the Scottish system of disclosure where parties identify certain categories of documents they require from opposing parties.

One key principle of the pilot scheme will continue to differentiate the Scots and English systems: regardless of what level of disclosure is applied, a party in England and Wales will always be under a duty to disclose ‘known adverse documents’. That is not the case in Scotland, where such documents will only be produced if they are referred to in a well-drafted specification of documents.

Skilled litigators: crucial to effective document recovery

Only time will tell whether the new pilot scheme in England and Wales will be successful. On the face of it, the new regime may well provide a fitting compromise to balance the desire for parties to have access to the documents they need and which, perhaps, justice requires, with the need to keep legal costs to a manageable level.

There has long been little appetite to radically alter document recovery north of the border. Although the Gill Review of the Scottish Civil Courts and the resulting report is now a decade old, it recognised that other systems, based on a standard disclosure principle, could encourage parties to disclose large amounts of irrelevant material – including in the hope that any damaging document may be lost from sight. The report instead recommended that early and wider disclosure should be facilitated by active judicial case management, whereby parties are required to disclose documents relating to the action. That approach can be seen in rule changes to date, including the recently updated guidance for Court of Session commercial actions which, coupled with a practice note from 2017, requires parties to adopt a co-operative, constructive and sensible approach, in order to achieve the reasonable and proportionate recovery of documents.

Further changes in the procedural rules in Scotland are anticipated via the Scottish Civil Justice Council Rules Rewrite Project, however the focus appears to remain on judges taking a proactive stance in managing the progression of cases. The practicalities of this more targeted approach in Scotland means the early instruction of a litigation lawyer – skilled in ascertaining which documents are most useful to a case and how to obtain them at an early stage – can make a huge difference to prospects of success.