Disclosure of leniency documents in the United Kingdom : Is the draft directive creating barriers?

This article looks at the potential impact of the draft Directive on U.K. discovery in antitrust cases and the lessons that have been learned in the U.K. courts so far. The focus will be on the practice involving leniency and settlement documents in private litigation. The U.K. experience may help to understand how discovery procedures could work in other jurisdictions and it also shows that sensible judicial oversight can limit the costs associated with the disclosure of evidence. Section 2 briefly describes the disclosure regime in the United Kingdom and the likely impact of the EU disclosure proposal. Section 3 looks at how the U.K. courts have solved the specific problem of access to leniency submissions. Section 4 discusses the potential issues arising from the limitations suggested in the draft Directive. Section 5 concludes.