We do not need an express “rocket docket” jurisdiction for everyone to agree that some or all of the case stages may be speeded up or dispensed with. It is, however, worth seeing what is happening in Australia.
Seamus Byrne of eDiscovery Tools in Australia (and now in London as well) responds quickly to my reference to “rocket docket” cases in the US (see Whose discovery rules would you rather break?) by pointing out that a rocket docket pilot is in hand in the Federal Court of Australia.
More formally called the Fast Track List , the pilot takes as its guiding premise that Cases cannot be made less complex, but judges can control the conduct of a case to a much greater extent thereby ensuring efficiency. Discovery has become most burdensome [and in] many cases it the single largest cost incurred in the preparation of the case. Many practitioners in the UK will applaud the conclusion that the practice … of requiring parties’ evidence to be tendered in the form of witness statements has significantly added to the costs.
In England & Wales, allocation to the fast track is dictated largely by a formula – if the case is not in the small claims track, is worth less than £15,000 in value, has a trial estimate of no longer than one day and involves limited experts then into the fast track it generally goes (Part 26.6(4) CPR). The Australian model seems, subject to certain exclusions, rather to depend on the view taken by the judge as to the practicality of racing through the stages whilst (presumably) still dispensing justice.
Once in the fast track, a case is governed by strict rules – a case summary instead of pleadings, a scheduling conference which the lawyers must attend after 6 weeks, interlocutory applications to be dealt with on the papers, only “significant” documents to be discovered, and a “chess clock” timing model at trial which presumably helps advocates to focus on what is really important.
This approach clearly will not suit every case, still less every judge. Nevertheless, an approach along these lines would offer a quick and relatively cheap route to a level of justice which many parties would accept (and with much more at stake than the £15,000 fast track limit here) if the alternative is either a long and expensive haul through the full works or abandoning or settling the claim .
The judge cannot ride roughshod over the CPR and the parties’ wishes, but the rules as they stand allow for the abandonment or abbreviation of stages which all involved might agree to be unnecessary for the case in question – see for example the Practice Direction to Part 31 CPR Paragraph 1.4 as to agreement to limit disclosure
Leaving aside those cases which are inherently large or complex – with many issues, disputed facts, serious points of law, several witness, tens or hundreds of thousands of documents – neither value nor large document populations necessarily dictate that the pre-trial process needs to be prolonged; there is not always, in fact, a direct correlation between estimated trial length and the time needed to prepare for trial.
We will have to wait and see if the Commercial Court Recommendations do in fact have their intended effect – many practitioners stare gloomily at the time-table and reckon that its effect will be merely to front-end more of the costs and make everyone run faster to much the same conclusion as hitherto.
HHJ Simon Brown QC, in a conference speech which I quote often, expressed the intent rather more succinctly: What I want to know, is this: what is the case about? Which of the pleaded issues really matter in getting to the heart of the dispute? Can we split the case up and limit disclosure to the subjects which matter, or which matter most?
The Australian fast track pilot involves a panel of three judges, presumably picked for their briskness amongst other qualities. They operate according to a nine page Notice to Practitioners which includes admirably succinct directions such as:
discovery … will, as regards liability, be confined to documents in the following categories:
(a) documents on which a party intends to rely; and
(b) documents that have significant probative value adverse to a party’s case.
A “good-faith proportionate search” is a search undertaken by a party in which the party makes a good-faith effort to locate discoverable documents, while bearing in mind that the cost of the search should not be excessive having regard to the nature and complexity of issues raised by the case, including the type of relief sought and the quantum of the claim.
Nothing is said about the form of discovery but, by a separate Practice Note applicable in all Federal cases, from 1 July any case involving more than 200 disclosable documents must be given electronically.
There are strict requirements as to personal attendance where necessary e.g. at the pre-trial conference, and as to the form and length of papers supporting applications – in writing and …accompanied by a written brief (not exceeding five (5) pages) setting forth a concise statement of the facts (if necessary verified by affidavit) and supporting arguments, with a citation of the authorities upon which the moving party relies.
Requests for extensions of time in general will be looked upon with disfavour.
The rules for the length of submissions at trial make Mastermind looked relaxing, with a fixed block of time for each round, extended only in exceptional circumstances with a daily check as to how much time each party has used and how much time each party has remaining.
Willing parties and an active judge in a UK could agree that some or all of this is appropriate. Electronic disclosure should be the norm, with it being open to parties to argue that it is not appropriate in this particular case, with comparative costs estimates to back their assertions. The same might apply to real-time transcripts of hearings, with the disbursement cost set against the estimated savings of hearing time.
All right, all right, I know that this is a statement of the ideal. With the best will in the world, it is often far from clear what the real issues are at the outset. Lawyers have other clients, clients have businesses to run, and judges have full timetables. Often there is no “best will” to do anything but fight with every weapon to hand. Costs estimates for electronic disclosure may be calculable, but their comparator, a manual review, is less so and, however trusting of the technology, lawyers still have to satisfy themselves that they are neither under- nor over-disclosing. It can take longer to write a pithy pleading or witness statement than a discursive one – “Je n’ai fait celle-ci plus longue que parce que je n’ai pas eu le loisir de la faire plus courte”* as Pascal would have said if he were a drafting barrister
The main point worth making here is that rocket docket cases are not necessarily all of a kind, nor must the whole case management process go like a rocket if only part of it lends itself to a faster approach than the norm. A case does not have to fit a formula for the protagonists and the judge to decide that it or parts of it may be cut down or omitted in the interest of getting a result quickly and cheaply. There are specific invitations in the rules to dispense with this or abbreviate that, but the main weapon here is lawyer co-operation and judicial intervention.
We do not need a specific rocket docket jurisdiction for everyone involved in a case to be persuaded (by a forceful judge if not entirely voluntarily) that justice can be done by some shorter or faster route than the strict rules require. Disclosure frequently offers the most obvious ways to do this. The difference between our definition of a disclosable document and the Australian fast track definition is the phrase “significant probative value”. That equates to the Commercial Court Recommendations’ emphasis on a “surgical” approach to disclosure and to Judge Brown’s enthusiasm at CMC stage to “getting to the heart of the dispute”.
It does not work for every case; it may not work for a majority of cases. It is worth thinking about, however, before the parties plod wearily down the tracks apparently ordained by the CPR.
*Those whose education took place in the years after Blair’s commitment to “education, education, education” and the consequent decline in the teaching of languages, may appreciate a translation: “I would not have made this so long but I have not had the leisure to make it shorter”. Blaise Pascal, letter 4 December 4, 1656. US readers will be more familiar with Mark Twain’s derivative version.