Family Law

Her Honour Nasreen Pearce

Retired Circuit Judge

David Burrows

Solicitor Advocate:

With the current revolution of paperless transactions in professional dealings and the appetite for many documents and correspondence online, e-disclosure is developing as a way forward in civil litigation, especially where there is a substantial variety of documentation in electronic form. E-disclosure now forms a regular part of the process of disclosure in civil proceedings. Although family proceedings have not been affected as yet with this process, it is likely not to be long before cases with more substantial documents are covered by a family law equivalent of PD31B. Until this occurs procedures akin to PD31B may prove a useful tool in family proceedings, for example:

• in cases involving international or complex financial transactions;
• in cases of unusual or obscure corporate structures; and
• in other proceedings where large amounts of electronically stored information are involved.

Disclosure is a crucial part of all litigation and one which has to be addressed at the outset. Since electronic documents must be disclosed, e-disclosure (of some sort) must form part of that disclosure. Practitioners may wish to become familiar with PD31B and to be prepared as family proceedings case management catches up with the common law and consideration is given to the urgent need for the FPR to be revised to embrace the advancement in technology.

This article seeks to highlight the shortcomings of the FPR 2010 in this area of disclosure, and to consider the extent to which the CPR 1998, PD31B procedure can be used in family proceedings, either by analogy or on the basis that the practice direction can be treated as representing the common law.

The full version of this article appears in the February 2013 issue of Family Law.