I nearly did Gordon Brown an injustice last night. My notes for a talk to be given in Birmingham included the observation that “our weasel-worded Prime Minister has not yet found the guts to admit that we are in or heading for recession”. Fortunately, the subject came up in the pre-seminar drinks, and someone drew my attention to the fact that our weasel-worded Prime Minister had in fact summoned the courage to use the R-word the previous day.
I am a newspaper junkie, which is subtly different from being a news junkie. I do not much mind about being bang up to date with the news, but no copy of the Times leaves the house without my reading it from cover to cover – well not the sport obviously or the fashion, but most of the rest. Having been off doing my Phileas Fogg bit (I was at e-disclosure conferences in both Sydney and Washington the previous week), I have a large backlog of newspapers to read, and keeping up to date has suffered as a result.
It is rather odd, in fact, reading old papers over a week as volatile as that one, particularly as I read them in no particular order. It was not just that share prices were going up and down like an intern’s knickers. There were old stories coming round again, and I began to think that I had fallen into a newspaper time-warp. Here is the Labour party finally fulfilling its 1931 plan to nationalise the banks (good to know that Labour keeps some of its promises anyway, even if it takes a while). And there is Peter Mandelson accepting hospitality from a rich foreigner just before the foreigner gets a valuable trade concession. No connection at all, says Mandy and, of course, we have to believe him, just as we had to believe Tony Blair when he said that he knew nothing about the Bernie Ecclestone £1 million loan and its intimate connection, in terms of timeliness at least, with the relaxation of the tobacco advertising ban. Turn the page – oh, there is that story back again. It seems that when Teflon Tone said white was white on that occasion, what he meant was, um, the opposite.
It makes you wonder what would happen if a New Labour minister found himself being cross-examined under the eyes of a steely-eyed judge. Well, of course, we know the answer to that as well: Stephen Byers cheerfully admitted in court that he had lied over the Railtrack Administration, as if lying to Parliament was a natural, everyday thing to do. Which, of course, is what New Labour has been doing for the last eleven years, lying as to what it has done, as to what it is doing and as to what it plans to do.
Amongst New Labour’s earlier promises was one for an overhaul of the infrastructure of the civil justice system, with bold plans for modernisation of the IT systems to allow electronic filing and other advances which would make the administration of justice commensurate with the duty of the state – any state – to provide a cost-effective and efficient forum for the resolution of disputes. That commitment was quietly ditched, like so many others, lost in a flood of more eye-catching and voter-friendly “initiatives” like the constant stream which emanate from Ed Balls – and, of course, in paying Ed Balls’ mortgage.
Instead, civil justice, like the railways (another primary duty of government and the subject of a similar set of broken promises) was not merely neglected, but turned into a cash cow, with ever higher court fees putting justice even further out of the reach of citizens and businesses. It came as no surprise, as I ploughed through the back copes of the Times, to find that the justice budget is being slashed. We do not yet know where the axe will fall, but the substantial investment already made in working up pilot modernisation schemes must be at risk.
There is more at stake here than poorly-paid court officials struggling to administer modern justice with systems which Dickens would recognise, and more also than my soft-edged attachment to the state’s duty to provide a forum for disputes. Civil liberties are threatened as never before, and we look to judges to protect us from the excesses of arbitrary power. The decline of morality, decency and honesty in government is inevitably matched among its citizens – if ministers lie, fiddle their expenses, exchange favours for cash, and generally behave as if the law does not apply to them, then it is inevitable that everyone else will do the same. Floods of arbitrary laws, misdirected regulation (that is, regulating everything except those things which matter), the conversion of political correctness into prohibition, and ever more traps and burdens for employers all make it necessary to defend and enhance the civil justice system.
On top of all that (and to return to my starting-point about the R-word), we are about to see a flood of litigation arising from the collapse of the economy. The system has creaked, even with the low levels of litigation of the last decade, with civil judges complaining (with justification so far as one can tell) about their legal workload, quite apart from the administrative defects inherent in the system. How will we cope with what is to come, as banks, businesses, administrators and liquidators, to say nothing of government itself, bring the broken pieces of the economic miracle to the courts for justice? Hard times increase the incentive for fraud just as technology offers new ways of perpetrating fraud. We need more than the exchange of one type of judicial frock for another – the most significant alteration in court practice of recent years.
In the US, Federal judges have recently lost a 2% cost of living pay increase – “lost” as in had it taken away from them by the government after it had been awarded, a move which parallels New Labour’s recent treachery towards the police over their pay award. Good people will leave, just when they are most needed.
I have already reported on US Magistrate Judge Facciola’s speech on leadership in Washington last week (Leadership in litigation). We clearly cannot look to government for leadership here in the UK. Gordon Brown may strut the world economic stage this week, but in truth he leads in much the same way that the first pheasant leads over the butts when the beaters move up – and, we hope, with much the same outcome. Whence will come the leadership which will take corporations, citizens, lawyers and the courts – together making up society – through the coming deluge?
I did not stray too far into this territory in my talk last night in what was, in any event, a deviation from my advertised theme. My purpose there was to try and elevate the discussion beyond mere court rules and technology and into what all the interested parties – judges, lawyers, corporates and suppliers – might be setting as their targets. Corporates have shareholders and staff as their priority as well as the management of foreseeable risk. Lawyers have their clients and their profits in mind. Suppliers have solutions to sell and targets to reach. Judges must dispense justice and keep their lists in hand. All this is as it should be.
There is a higher aim, however, wholly compatible with these objectives but stretching beyond it. It is not enough just to keep the boat afloat in the rough seas – that is achievement itself but we can do more. It is (almost) a truism that economies bounce out of dire times stronger than they entered them – I am not talking cynically of boom and bust, but of real changes which emerge from hard times. This is not uniformly true – British farming never recovered from the agricultural depression of the 1870s, in part through an obstinate refusal to accept that times had changed, and it took us 20 years to recover economically from the Second World War if, indeed, our post-war status internationally can properly be described as a recovery.
Nevertheless, hard times, whether in war or the economy, engender new and better ways of working. Both the major wars of the last century took us forward by big jumps in terms of technology and of the structures, social and administrative, developed to meet the challenges. Thatcher’s boom had many victims, but they were perhaps those doomed to go down anyway, and were outbalanced by the beneficiaries of the subsequent recovery. Those who prospered were to some extent carried up on a bigger wave, but they made their own fortunes by their adeptness at adjusting to meet changed times. We could see the same as we come out of the collapse of the economy.
This, to bring us back to my real subject and my narrow focus, means opportunities for the players in electronic discovery of information. Corporate risk assessments – to the extent that they have been made at all – about the time-bombs of unstructured data on company systems, must be re-appraised as businesses find it impossible or, at least, prohibitively expensive to bring or defend claims, to satisfy regulators or simply to run their businesses economically. Judges whose courts are full of document-heavy claims will blow the dust off their rule books and find that they have a whole armoury of powers to cut through the irrelevant and get down to the facts which matter. Lawyers – some of them anyway – will see new opportunities, both reactively – being better than their rivals at conducting litigation in the information world – and pro-actively offering advice to clients who will otherwise by-pass them. And suppliers of technology solutions will tune both their products and their marketing towards a business world which will begin to appreciate that existing tools and practices, like horse-drawn ploughs, mounted cavalry and coal-mines, are not up to the pressures – and the opportunities – of the new world.
But who will lead? Short of some major political upheaval putting Vince Cable into Downing Street (preferably without the rest of his party) we are stuck with the stew of corruption and sauve qui peut self-interest which has defined the last eleven years, so it will not be government who brings about the changes we need. Companies, lawyers and suppliers will react slowly – it is a cultural as well as a business ethos we need to make different, and that takes time. That leaves the judges.
It is quite a burden really, to be expected to serve not just as the bulwark of our liberties against the advancing powers of an oppressive and neglectful government, but to be the vanguard of an economic revival. There are precedents for the former throughout history, but one does not naturally think of the judiciary as commercial leaders.
I do not, of course, imply anything extreme here. But the judiciary has successfully beaten off Labour’s attempts to trammel its power, maintained its independence in the face of extreme pressure (think Blunkett), and retained public respect over a period when politicians have forfeited every vestige of the regard they had even a decade ago and when the press, the police and the financiers have become similarly discredited.
The detritus of the financial debacle will wash up at the door of the courts, civil and criminal, for many years to come. Many of the judgments which result will affect no-one but the parties to them. There will be opportunities, however, for judges to set the standards by which businesses and individuals – and governments – will operate in the post-recession climate. Not all of that will be ground-breaking restatements of the principles of law – slow, steady steps to reduce the cost of dispute resolution will be as valuable. This is not just a matter of court process. US courts have had a profound effect on the way businesses are run, not all of it, it has to be said, for the better. English judges could exert a similar influence, avoiding the worst and taking the best from what has happened in other jurisdictions.
The first stage in recovery or rehabilitation is to admit that there is a problem. Gordon Brown has at last screwed up his courage to admit the scale of the problem or, rather, in his usual style, has been beaten back to a position where he had no option but to admit it. Anecdotal evidence suggests that the last couple of weeks have seen the first stirrings of the long-expected flood of economy-driven disputes. Like a wave seen far out to sea, it will reach the courts soon. How the courts handle it will have a significant impact on how business is done in the post-recession era.