The old cliches are the best of course, and I feel just now that we have reached the summit after pushing snow uphill for years (15 years in my case). The snowball is poised to roll downhill, gathering momentum and bulk as it goes.
His Honour Judge Simon Brown QC, a Designated Mercantile Judge at the Birmingham Civil Justice Centre, has today released a standard form of directions for use in all Mercantile Courts. It will be sent out electronically to all parties once the defence has been filed. As well as compelling a focus on issues, it includes a direction which implicitly reminds parties of their obligations under Paragraph 2A.2 of the Practice Direction to Part 31– the obligation to discuss any issues arising from searches for electronic documents. That, of course, should already have been done before the first CMC.
The standard form can be found here:
A group of us – Vince Neicho, Mark Dingle, Clive Freedman and me – has been asked by Master Whitaker to draft a technology questionnaire which allows (or compels, depending on your viewpoint) parties to disclose what electronic sources they have in a simple and standard way. We meet to discuss this next week.
Each day this week has brought a future opportunity for me or Judge Brown or both of us to speak on the subject of the courts and electronic disclosure at some relevant event to audiences ranging from judges to solicitors around the country. As noted in an earlier post, the Law Society has this week published the 10-region tour which I am to do for them.
This is just a part of what is, suddenly, happening in this area. None of it seemed at all likely when we started last November. What we are doing here parallels what is about to happen in Australia, where a new Practice Note takes effect from 1 July. There is a very real opportunity, in both jurisdictions, to make a difference to the way this aspect, at least, of civil litigation is managed.
This is not, I hasten to add, through our sole agency. The Commercial Court Recommendations have been perhaps the biggest single impetus towards efficient case management, if not yet in visible result (it is too early for that), then certainly in changing the culture. The LiST Group has been working towards this for years, as has Master Whitaker. We have been lucky in what went before, and lucky to catch the wind at the right time.
I will do a proper analysis of at least the disclosure parts of the new form of Directions as soon as I can. Meanwhile, I thought you might like to see it.
Do please contact me if you would like to talk about any of this.