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. 

You can read the full article on the UK P&I Club website here.