The importance of Digicel v Cable & Wireless lies not in any new law and still less in allocating blame for the outcome. We cannot predict its consequences but what matters is that everyone now knows about the Practice Direction to Part 31 CPR
Zhou Enlai, first Premier of the People’s Republic of China, when asked to assess the importance of the French Revolution, famously replied that it was “too early to say”. Similarly, I do not feel in any great rush to say what the long-term effect will be of Digicel (St Lucia) Ltd v Cable and Wireless plc  EWHC 2522 (Ch),  All ER (D) 226 (Oct), Chancery Division, Morgan J., 23 October 2008 (thanks to ignorant politicians and the damage caused by trendy educationalists, it is probably necessary to explain for the benefit of anyone under 40 that the French Revolution began in 1789 and that Zhou Enlai died in 1976).
Digicel’s importance does not lie in any new interpretation of the law. The defendant declined to give disclosure of the contents of a large number of tapes, saying that it was too expensive and disproportionate to do so. The Claimant took a different view and applied to the court for an order for specific disclosure under Part 31.12 CPR. The Defendant ran some fancy-sounding arguments not worth the typing time to recount. The Claimant stood firmly on the rules, and in particular the factors set out in Part 31.7 CPR and paragraph 2A.4 of the Practice Direction to Part 31. The judge agreed with the latter approach, and concluded that “more needs to be done”. He directed as to the restoration of the back-up tapes that the parties “meet more or less straight away to discuss how this can best be done” and that “Following such a meeting, the Defendants should embark so far as reasonably practicable upon restoration of the back-up tapes for the purpose of identifying and enabling a search of relevant e-mail accounts.”
He also resolved a dispute between the parties as to the keywords which should be used and directed that the Defendants not only use his list for the newly-ordered searches but that they redo much of the disclosure they had already done with the same list.
All this makes perfect sense, and not just because that is what the rules require – as a common-sense matter, how else would one set about arriving at a consensual conclusion as to what is proportionate, using the court as referee where agreement could not be reached? You form a view as to what might be useful for establishing a just result, you establish the likely costs of alternative approaches, you try and agree this with the other side, and involve – implicate, one might say – the court if you cannot agree.
The reality, of course, is not so simple. The duty to co-operate on such things has not hitherto been enforced by the courts, and disclosure remains one of the last areas where the adversarial approach to litigation has had free reign. Perhaps that is because it is not an express duty within the Practice Direction – a pedant might argue that whilst Paragraph 2A.3 of the PD says in terms that the parties “should co-operate” (in this case as to the format for exchange), Paragraph 2A.2 merely says that they “should…discuss” issues as to searches for documents. If anyone has thought that they might stand on that distinction in declining an invitation to co-operate as to the scope of the search, they will, I imagine, think differently now (they might take a gander at the overriding objective as well).
There are several passages in Mr Justice Morgan’s lucid judgment which deserve emphasis. None of it, however, is new; most of it can be found in articles on this site which pre-date the Digicel order, and both the judgment and the PD could be read and assimilated in less time than it will take to explain to a client why he has been ordered to redo disclosure.
That brings me to a question I was asked at a conference a few days ago. I was moderating a panel of judges (Senior Master Whitaker, HHJ Simon Brown QC and Retired US Judge William Bassler) and one of the delegates asked who was to blame for the Digicel judgment. Was it the Defendant, or was it the solicitors who were at fault? The implication behind the question was that either the Defendants had given instructions to keep the tapes out of the litigation at all costs, or that the lawyers had fouled up in getting at the wrong end of a judgment with rather expensive implications.
I declined to answer, partly because the bare words of the judgment give little clue one way or the other, and partly because I don’t give a hoot who was to blame. Most judgments have a loser and, quite often, you look back and see where a different set of choices might have been made on the way without needing to allocate blame. Paragraph 2A.2 of the PD to Part 31 provides a mechanism for making the court the arbiter when parties disagree as to what ought to be disclosed. You do not need to ascribe either underhand motives or poor judgment to a party or its lawyers if they take a view as to proportionality which the other side, and then the court, disagrees with.
The significance of the Digicel judgment lies in the shaft of light it throws on a Practice Direction which is reasonably well-crafted for its purpose (though not perfect) but which has been neglected. Henceforth, no-one can say that they did not know that the obligations exist or what they mean. The parties in Digicel clearly did know, and I doubt that there was much argument as to the meaning of the bare words, but they took different views on their application to the circumstances. One of them lost.
The Claimant did not have it all its own way either. The final keywords list was shorter than they had hoped for, and it is not clear that their demands of the Defendants correctly anticipated the judge’s ultimate directions. All that matters is that anyone who finds themselves in a dispute about the scope of searches for potentially disclosable documents now has 107 paragraphs of careful judgment to read as a guide to what is expected of them in addition to the rule and the PD.
Although the French Revolution kicked off with an epochal event – the attack on the Bastille – it did not come out of a clear sky. You did not need to be Nostradamus to predict that the known world was about to change. I claim no great prescience for predicting at the start of 2008 that a judge would make a strong order based on the Practice Direction to Part 31 CPR (my prediction, made for the Society for Computers & Law last December, was that someone would get struck out for failure to comply with the PD; next year perhaps). It is too early to predict what the consequences of Digicel will be, but they must include greater attention paid by judges and practitioners to the PD31 2A.2 requirements, even if only because everyone now knows they exist.