A thoughtful article by Simon Davis and Simon James of Clifford Chance has appeared on the Lexology site. A purist might quibble about its title – Jackson’s dilemma – or how to cut the cost of litigation – on the grounds that Lord Justice Jackson faces nothing so simple as a choice between one alternative and another, as the article itself makes clear.
It touches on several of the factors which Jackson will want to cover. On the pure costs side, the “loser pays” principle, costs-shifting, contingency fees and CFAs, and champerty (or “trafficking in litigation” as the article puts it) will have to be considered.
As to the civil procedure itself, the amount of pre-trial activity is identifiable as the main reason why English litigation is so expensive, with the benefits of disclosure and witness statements, for example, to be balanced against their cost.
The authors refer to possible variants to the present disclosure regime. One point which they raise came up at a conference recently – “are documentary ‘smoking guns’ mythical, or do they emerge often enough to justify the costs of disclosure”. I have been against the use of the “smoking gun” expression, partly because it has made-for-TV connotations – all those American court-room dramas which involve banging gavels and implausible last-minute revelations which save the day – and partly because of the implausibility of a case turning on a document which neither side remembered.
Sitting on a panel at a conference recently, I asked how many of those present had actually found a smoking gun, and was surprised by how many hands went up.
My objection to the phrase persists, however. Disclosure involves a methodical march through often large amounts of material to produce the facts on which a judge can make a decision. Witnesses, however well-intentioned, are too often unreliable in their recollections of what happened yesterday, never mind months or years ago – Tony Blair, for example, completely forgot his personal involvement in fixing generous F1’s exemption from the tobacco advertising ban until the e-mails emerged ten years later to prove it. Witness statements (whatever their virtues) can have the effect of substituting the ideal version for the actual one.
Only the documents can correct that wholly-human failing. Our task must be to manage more efficiently how those documents are found, selected and put before the court. That may involve some fine-tuning of the rules; it certainly requires the directed use of technology; above all, however, it requires judges to use the rules we have got and to understand how the technology can help.
Mutual discovery of documents is valuable for more than its tradition and its longevity as a principle. The temptation is to blame the principle, and there will doubtless be those who urge Lord Justice Jackson to do just that. A better, and more immediate, target is the way that the practice of finding and handling documents has lagged so far behind our ability to create them. That is not the fault of the technology, which is extremely sophisticated, but of those – courts, lawyers, and the clients themselves – who have ignored rules and technology alike.
Lord Justice Jackson is working to a tight timetable, with a working paper due by the end of April for consultation. He is keen to get information and submissions from a wide range of interested parties, as well as to hear for himself what works and does not work in other jurisdictions.