The risk that contentious work might shift to arbitration or to other jurisdictions such as Germany is reason enough for us to fight to keep it here. The Commercial Court Long Trials Recommendations may have had too wide a focus. Attention to the costs of disclosure, with help from a new generation of Early Case Assessment tools and a pooling of ideas with Australia and Canada may be the next step
On 2 December, the City of London Law Society considered the impact of the Commercial Court Long Trials Recommendations at an open meeting held at Freshfields. I usually go to any such events but had not picked up that it was happening – not the only thing I was in the dark about on that day, since someone drilled through a mains cable at breakfast-time and I was without power till far into the night. I would at least have kept warm if I had gone to the meeting. I am grateful to Mark Surguy of Pinsent Masons in Birmingham for a summary of what was said.
Mark was on a panel which included Lord Justice Aikens (who chaired the committee which produced the Commercial Court Recommendations), Mr Justice Andrew Smith (Head of the Commercial Court), Mr Justice Flaux, Justin Fenwick QC, and three Freshfields partners. The meeting was convened to provide feedback on, and stimulate debate in relation to, the experience of practitioners on the operation of the pilot scheme to implement the Recommendations. It attracted between 70 and 100 delegates.
Many of those speaking had been involved in the Buncefield case which had been through the Commercial Court during the trial period and which contained most of the elements which the Recommendations had sought to address. Statements of case, lists of issues, disclosure and the preparation for the trial itself were all discussed.
Mark Surguy’s principle interest (like mine and, one assumes, anyone who reads a web site devoted to the subject) was disclosure. Buncefield had one element in it which deserves wider consideration – by agreement between the parties, all the documents had been hosted by a single provider. Generally, however, it was not clear that judges had really got their heads round the problems raised by electronic disclosure or the potential solutions, although they recognised that it was a major component in the high costs which were the main subject-matter of the evening. Digicel v Cable & Wireless was familiar to some, but not yet all, of those present.
That case, as I have suggested elsewhere (see The revolutionary consequences of Digicel) made no new law, but is the first reported case on the effective use by a judge of the weapons which the Practice Direction to Part 31 CPR give for managing disclosure. The Commercial Court Recommendations similarly involved no new rules, just a tighter focus on using those which exist already, a point strongly made by Sir Andrew Smith and Sir Richard Aikens when the Recommendations were launched (see Commercial Court judges set out their case management intentions). It is disappointing that the period of the Recommendations’ trial has not brought up more opportunity for judge-led management of disclosure using the considerable powers which the Rules give already – after all, the subject occupied a large chunk of the Recommendations’ 84 pages.
Someone apparently suggested that there would be more take-up of the technology if there was some scheme for court approval of the many electronic disclosure solution providers. I do not myself see that any form of approval is either practicable or desirable. It would be helpful, however, if judges were at least made aware of what services exist, what they are capable of and what the costs implications – expenses and savings – are. How otherwise can they self-start on management of the problem? Mr Justice Morgan showed in his Digicel judgment that a judge who is prepared to get his mind round the rules and the technology can make effective orders. That case, as it happens, concerned a successful attempt to widen the scope of disclosure. The same principles apply where one of the parties, or the judge himself, sees an opportunity to restrict that scope. The Recommendations say in terms (Paragraph 68(a)) that the CMC decides on the scope of disclosure.
Some see a conflict, Mark Surguy said, between this deferment of disclosure discussions until the CMC and the obligations in Paragraph 2A.2 of the PD to Part 31 CPR to discuss electronic sources before the CMC. This conflict is more apparent than real. The 2A.2 obligation is to collect and share information as to the potential scope of disclosure. That is a necessary precursor firstly to trying to agree what should be disclosed and secondly to giving the court enough information for it to make decisions at the CMC in default of (or in place of) agreement between the parties. Those of us charged with drafting a new Practice Direction will be seeking to clarify the timing issues.
The new List of Issues aroused the strongest comments, with doubts expressed as to whether they were achieving their intended purpose. The meeting seemed to confirm what I have heard anecdotally over the year to the effect that any benefit which they bring, over and above (or in place of) the pleadings, is wiped out by the fierce arguments which take place as to settling the list. What appears superficially to be an obvious first step – let’s all agree what we are fighting about – has become a battlefield all of its own. That is what has happened with discovery in the US courts. There has to be a compromise somewhere between the benefits of early active management and the downside of up-front costs.
There was some discussion about LPO (Legal process Outsourcing) for the earlier stages of the document filtering process. This raises issues about quality and responsibility, with one firm saying that whilst they may well go down this route for very big cases, they would want the sanction of the court first.
Another point which came up was the use of judicial assistants. There are some extremely bright and able people who are already employed within the courts in other roles or who could be employed in this capacity. The problem, even before recession took hold, is that the civil justice system is under-resourced both absolutely and relative to its importance.
The real fear voiced at the meeting is that parties will abandon public dispute resolution in favour either of private arbitration or other jurisdictions with a better grip on case management. Germany was mentioned as providing a forum where the litigation process is very streamlined.
No-one can pretend that this is easy nor suggest that the Commercial Court is not seeking to address the problems. The Long Trials Recommendations aroused strong comment at their inception, both for and against, ranging from those who saw any increased management as a source of unnecessary expense to, at the other extreme, those who wanted a root-and-branch reform of the rules. There seems little argument – how could there be? – that disclosure is a major cause of expense and delay, and it is disappointing that there seems to have been little opportunity to tackle this during the trial period in the manner urged in the Recommendations.
The core problem is the conflict mentioned above between the benefits of early case management and the front-loading of expense which comes with it. Too much now turns on it for the lawyers not to throw all their resources at coming out on top at these early stages. That much is easily said. The Commercial Court Recommendations are perhaps open to the charge that they tried to move on too wide a front, picking off more targets than were achievable in one go and imposing burdens disproportionate to the benefits, at least over the relatively short period of the trial.
The year has seen a big push by litigation software providers to come up with solutions for early case assessment. In the US, this has capitals for added emphasis – Early Case Assessment – and yet another acronym, ECA. The idea is to make it much easier than it used to be for lawyers to get their arms round the problem of electronic documents at an early stage and to do so at a cost which is acceptable both absolutely and relative to the enormous savings which may be made if everyone – including the court – was aware both of the general potential of these applications and of the specific results in any one case.
The advances are sufficiently generic – that is, they can be promoted as a concept not as the product of any one provider – for it to be acceptable for judicial notice to be taken of them. One of my ambitions for the coming year is to increase such awareness in the hope that this most expensive aspect of case management can be given a more active push by judges.
One of my favourite advertisements from years ago showed a Spitfire doing its elegant stuff through the air whilst an admiring commentary told of what it had achieved for Britain, ending with the words “And that is why you do not have to say Vorsprung Durch Teknik”. The reference, of course, was to the advertising slogan of the German-made Audi. Only in the last seconds were we told that the advertisement was for British-made Fords. This is all rather unfashionable today on both cultural and manufacturing grounds, but it was effective nevertheless.
If, as this meeting was told, there is a real risk of contentious work moving to Germany, then it needs no xenophobia on our part to fight to keep it here. If we need heavy use of American resources and co-operation with Australia and Canada to win, it will not be the first time. The US resources this time around are the software applications, and the Commonwealth co-operation consists of shared ideas for improving practice and procedure. It is very much part of my mission to encourage both.