The new rules on disclosure and Volcafe
16 May 2019
Under English law, the position has always been that all documents, correspondence and other materials relevant to a case (both favourable and adverse) are disclosable, unless a narrow exception such as ‘privilege’ applies.
Historically, disclosure in court litigation takes place when legal pleadings are closed. The new rules on disclosure now require disclosure of documents at a much earlier stage.
The Volcafe case is important to the question of “who has the burden of proving what” when damage occurs to cargo during carriage. The Supreme Court analysed the relevance of the English common law of bailment, the burden of proof under the Hague and Hague-Visby Rules (the Hague Rules) and the interplay between a carrier’s duties and the defences/exceptions available to the carrier under the Hague Rules.
Although the rules on disclosure in arbitration proceedings remain unchanged, the Volcafe case could have an impact on how arbitrations are run as the decision brings in a shift in the parties’ burdens of proof.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at May 2019.