John Reynolds, a partner in White & Case, shows less than enthusiasm for the Commercial Court Long Trials Report and Recommendations in an article published yesterday on Legal Week’s web site. The Recommendations deserve more credit.
The article, headed Aikens misses the big picture, is a difficult one to rebut in that, whilst the overriding impression is one of disappointment, it is hard to see what Mr Reynolds would have had the Working Party come up with in its place. The committee, he says “was never going to produce a shiny new rule book”, yet he says also that “revision of the CPR is overdue”. He criticises the Recommendations as being “light on case management” but acknowledges that “the judiciary needs to be far more rigorous in the using the case management powers the rules contain…the deployment of [which] cannot be legislated for in the CPR” and adds that ”we must use this opportunity to overhaul the CPR and the way it is applied”.
So what are you saying here, John? Do we need new rules or just better use of the ones we have? Do the rules need an overhaul or not – if the problem is the better use of the existing management powers, and if they “cannot be legislated for in the CPR”, then what needs revision?
There is room for more than one view on this, of course. Those of us who are interested in this subject should be grateful to John Reynolds for getting any coverage for these Recommendations which, as I have written elsewhere, potentially have positive implications beyond the rarified air of the Commercial Court.
My interest is narrower than that of Mr Reynolds. I am concerned with e-disclosure and with the best use of the powers of management to control it. I told a conference audience this week that the Commercial Court Recommendations were all the evidence they need that the courts would make 2008 the year in which court users – and not just those in the Commercial Court – would really have to sit up and take notice of their obligations to keep costs and time under control.
So why do I say this? Before we look at the Recommendations themselves, is John Reynolds right to say that “revision of the CPR is overdue”. I do not think so, at least as regards e-disclosure and its management. They are not perfect, but they contain everything the court, and the parties, need to manage disclosure.
The express rules – the narrow definition of a disclosable document, the proportionality restrictions on the scope of search, the provisions as to a disclosure statement, and the duty of parties to discuss their sources of electronic sources would, without more, operate to hack through the volumes if anyone took any notice of them. The extremely wide-ranging management powers and the almost unfettered discretion given by the overriding objective would suffice on their own to control disclosure. Let us give them a run before we start thinking about new rules. And by “us”, I mean practitioners as well as judges – the courts can, and increasingly will, self-start on all this, but the primary duties lie with the parties, not just on behalf of their clients but because they have an express duty to work towards the overriding objective (Rule 1.3 CPR).
The Recommendations are unequivocal about this neglect. The introduction says:
.. we concluded, sadly, that in some cases either the parties or judges or both were not enforcing provisions in the CPR …with sufficient rigour. We concluded that there needs to be a re-education programme for both practitioners and the Commercial Court judges, to remind them of the procedures and powers that are already in place and those that we hope will be adopted as a result of this Report and to show how they might be used.
So far as e-disclosure is concerned, “re-education” rather overstates the case. We seem to hope that judges will pick it all up on the job, despite the fact that e-disclosure stands at the cross-roads of two very technical subjects – court rules and changing technology.
As part of the E-Disclosure Information Project which I am running, I have been invited to consider what, if any, new rules might be needed. I can think of none which will have any greater effect than using “the procedures and powers which are already in place”. Let us see parties made to disclose only the required documents, to discuss their sources before the first CMC and to focus on the disclosure statement. Let us see them require each other to do this even before the court gets involved. I do not suggest that any of it is easy, but it is much easier and cheaper than wading through the vast and undiscriminating disclosures we see at present. And it is certainly easier than trying to create the “shiny new rule book” to which John Reynolds refers, with all the consultation, the argument and the detailed attention of the Rule Committee which that entails.
I will pick three features of the Commercial Court Recommendations which show that the Working Party had its eye on the ball:-. the demand for a “surgical” approach to disclosure, the proposed Disclosure Schedule which ties the parties’ arguments about document sources transparently to the issues, and the suggestion that the senior management of litigating companies be made to have a greater involvement. The latter point goes wider than just disclosure, as do other provisions which go beyond my own area of interest but which, like the disclosure provisions, rely on focus, management and responsibility.
None of these things requires a new rule. As with what I said above about the scope of disclosure and the mandatory discussions about sources, they are already expressly provided for in the rules or fit within the existing management powers. Their biggest merit is that they can be used immediately – indeed, rumour has it that some firms are already feeling the effect of the Recommendations although the trial period is not due to start until 1 February.
Mr Reynolds is not entirely negative about the Commercial Court Recommendations; he adds a couple of his own suggestions, and acknowledges that none of this is easy. He seems keen (he says so) not to appear ungracious, but I think he could have given Mr Justice Aikens’ Committee more credit for a considered attempt to address the concerns which have arisen and to do so in a way which can be put into effect immediately.
It may be that some ideas for new rules appear from the trial period (which runs until 31 July 2008). Those of us involved in e-disclosure will be trying to establish where difficulties arise which may require a rule change – but we will not be doing so until the existing rules and powers have been given some exercise in different courts and in cases of varying size.