I am presenting a two hour seminar in London next Monday 9 March under the auspices of the Law Society.
Sponsored by Legal Inc and Millnet, both well-known suppliers of electronic disclosure solutions, this is a nuts-and-bolts review of everything from cases to rules, from a survey of the problems to a look at solutions, from points of detail to a review of the wider context. It includes a look at some applications.
The title of the seminar is Disclosure – the risks after Hedrich. Most of it is about electronic disclosure, but that is because most documents now in existence were created electronically, still exist electronically and therefore ought to be disclosed electronically – that is, their electronic existence should be disclosed even if it is not practical or cost-effective to handle or exchange them electronically.
This distinction between what you must disclose and how you go about using and exchanging it is one which gets overlooked. A document is anything in which information of any description is recorded (Rule 31.4 CPR) and a document which supports or is adverse to your clients’ case or the case of any other party must be disclosed (Rule 31.6 CPR). The overwhelming majority of such documents exist electronically – as e-mail, Word files or Excel spreadsheets – as well, possibly as paper, and should be disclosed as such.
Whether it makes sense to exchange them electronically is a separate question, one which can only be determined by assessing the costs of one approach versus another. That approach is required by the Practice Direction to Part 31 CPR which imposes an obligation to discuss electronic sources of information (PD 2A.2 CPR) and to take difficulties or disagreements to the judge at the first CMC. The same applies to the form in which documents are to be exchanged (PD 2A.3 CPR). It is perfectly proper to agree that this can be done most proportionately on paper, but you cannot make such a choice without knowing what the options are, discussing them with opponents, and being ready to argue about them in front of the judge.
All that has been cheerfully ignored by parties and judges alike hitherto. Digicel v Cable & Wireless changed that last year. If you think that Digicel involved parties, sums and issues too grand for your practice, then read Abela v Hammond Suddards. And if you think you can wing it through disclosure without understanding much about electronic documents, then read Hedrich v Standard Bank London, a salutory tale of overlooked documents, inadequate understanding and a wasted costs application in the Court of Appeal.
These new cases add point to what was already on the list of topics covered in these sessions, which were initiated last year. The London session is on 9 March at 4.30 in the Law Society in Chancery Lane. The fee is only £125 plus VAT and application is via this Registration Page.