Procedure, damages and costs
In this chapter of our Annual Insurance Review 2021, we look at the main developments in 2020 and expected issues in 2021 for procedure, damages and costs.
Key developments in 2020
The disclosure pilot continues to be one of the most controversial recent developments that litigators are required to overcome in all Business & Property Courts cases. Following consideration of a report prepared by the official monitor of the pilot (Professor Mulheron), the Disclosure Working Group recommended that the pilot (slightly amended) be extended for another year to the end of 2021. The Civil Procedure Rules Committee will consider these recommendations at the next opportunity. The proposed amendments are aimed at simplifying the Disclosure Review Document ("DRD") and addressing two key concerns expressed by practitioners; namely the lack of clarity over when known adverse documents must be disclosed and the requirement to send document preservation notices to former employees (now only necessary if there are reasonable grounds for believing they have any documents).
The proposed changes to the rules make clear that adverse documents need not be disclosed at the pleadings stage (with the parties' initial disclosure), but must be disclosed no later than the deadline for giving extended disclosure (if ordered) or within 60 days of the first case management conference. Whilst its aims are laudable, the disclosure pilot is easy to criticise. Even with the proposed modifications, the DRD is exceptionally laborious to complete in complex cases and unnecessary in simpler ones. The process of complying with the pilot generates very substantial costs (some practitioners report costs three times those of pre-pilot disclosure costs) without a commensurate benefit in terms of reducing the amount of documentation to be disclosed or streamlining the process. With adverse documents still not required to be disclosed until the traditional disclosure stage, it is difficult to see how the pilot will facilitate earlier settlement and, when cases do settle at the disclosure stage, they will do so with higher costs on both sides.
What to look out for in 2021
The COVID-19 pandemic continues to impact the conduct of civil litigation, as it does many areas of our lives. Practitioners and the courts have adapted quickly and ably to the constraints of the lockdowns and other national and local restrictions. A new practice direction 51ZA enabled parties to agree extensions up to 56 days to deadlines without the court's permission, but this expired on 30 October 2020 and, it appears, will not be extended; the expectation being that practitioners should attempt to return to normality as far as possible.
The majority of court hearings continue to take place by video or telephone and we can expect this practice to continue into 2021. Even if it is possible for parties to return to in-person hearings for all cases and issues, we anticipate that expectations will have shifted so that in-person hearings are no longer the default. Although video hearings can be more tiring and are not suitable for determining all issues, they do present an attractive alternative, for example, resulting in substantial savings in travel time and costs for lawyers and litigants based in the regions.
Another unexpected benefit of adapting to remote working and remote hearing is the rise of the electronic bundle. Although many of us may prefer to work from hard copy where available, well-made electronic bundles can be simpler to navigate and result in substantial costs savings. We anticipate that these practices will continue well into 2021 and may permanently reform the way that many of us litigate.
Authored by Aimee Talbot.
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