The Law Society has just published the programme and venue listings for its electronic disclosure training series under the title E-disclosure – the rules, the practice and the benefits. This begins in London on 13 May and goes to Birmingham, Manchester, Cambridge, Nottingham, Southampton, Bristol, Cardiff, Newcastle and ends in Leeds on 9 July.
This is of significance to me for three reasons – one, it shows the Law Society’s commitment to a subject which can no longer be ignored by solicitors who practice litigation in any court in the UK; two, it is the first serious attempt to carry the message out to those who cannot easily attend the e-disclosure conferences in London; and three, I am the one giving the talks.
The Law Society has already organised two successful talks in Birmingham at which Mark Surguy of Pinsent Masons, HHJ Simon Brown QC of the Birmingham Civil Justice Centre and I spoke in broad terms about the coming new rigour in litigation case management. Birmingham is leading the world here, largely thanks to a judge who preaches the word with vigour and who practices what he preaches in his court. Much of my speeches on those occasions have been devoted to the practice development aspects of getting a name – as individual firms and as a region – for efficient and cost-effective handling of litigation.
The 10-region tour is a more nuts and bolts affair, dealing with the formal disclosure obligations, the pragmatic approach which the discretionary powers allow, the tactics, the available tools and resources, and likely future developments.
The development which will affect everyone is the way in which the new rigour in the Commercial Court will roll out into lower courts very quickly. Birmingham may be taking the lead, but we are strictly enjoined by those responsible for strategy to aim for uniformity of approach, not for an island of efficiency in the West Midlands. The main weapons there are the new draft order for directions which Judge Brown is finalising (which expressly requires attention to electronic documents as the rules themselves require) and this Law Society tour.
The Law Society’s role extends beyond merely disseminating information. It is the growing volumes of disclosure, not specifically electronic disclosure, which raises the issues, and no firm which handles litigation of any size can ignore it. To say (as many firms do) that it is all new, that the rules are obscure, that there is no case law and that they are not geared up for document-heavy litigation, is really saying that that they are not equipped to practice in this area. The rules are nearly ten years old and the Practice Direction to Part 31 CPR has been in force since 2005. If there is no case law yet, that is because neither practitioners nor judges have complied with the rules – see paragraph 34 on page 17 of the Commercial Court Recommendations for this indictment:
…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.
If anything, the Commercial Court has been much more a place of rigour and knowledge than anywhere else and what applies there applies everywhere – that is, the rules are the same everywhere and the practice, like everything else, must be proportionate to the case. We can expect some case law as parties reel out of CMCs having had an expensive reminder of their duties.
This all raises professional issues, not just whether a firm is equipped to handle modern litigation but how to reconcile the handling of ever-larger document populations with the traditional obligation to read everything you disclose. There is an obvious role for the Law Society in this, and it is something I will be helping it with.
The last point of those raised by solicitors when hit between the eyes by a newly-proactive judge is that they do not have the technological skills. Much of the purpose of the E-Disclosure Information Project is to help lawyers identify external sources of assistance, whether to get them up to speed internally or to find an outsourced facility to take the technical tasks in hand for them. It is this which allows smaller firms to take on larger ones – one of my constant refrains is that technology is a leveller and that a small firm armed with appropriate outsourced technology can run rings round a big one who is not there yet.
The suppliers find it hard to get across the extent to which their services, geared as they are to large volumes, can scale down very well to routine cases. It is very much part of my role to get this across in parallel with the messages as to what the rules and practice actually require.
The 10-region tour is intended to bring all these things together. Have a look at the Law Society’s information sheet with the course details and venue listing. The cost per head is £105 plus VAT and is presumably so low because of sponsorship by Legal Inc and Millnet, two of the many providers of services in this area. This seems to me to be a very cheap way of making a start in understanding about this area.
If you can’t wait until your area’s talk comes up and you want help with any of the points raised here, or anywhere else in this blog, or in connection with a Case Management Conference, please do not hesitate to contact me.