The brochure came out today for Ark Group’s e-Disclosure conference taking place in the Ibis Hotel, Earls Court, London on 8-9 June.

The main attraction is Lord Justice Jackson who will be presenting a review of the litigation costs working paper which he is spending 2009 working on. He will be talking about his investigation into cases of all sizes, looking at the costs in all the Specialist Courts (that is, the Commercial Court, Technology & Construction Court, the Mercantile Courts etc) and discussing the limitations in the present system which have been raised by others in the course of his review.

I am amongst those who gave some input into that exercise, specifically on e-disclosure. My main role at the conference is to deliver the keynote speech. I have called it The Empty Bear Garden, a title inspired by a space in the Royal Courts of Justice which was full of bustle when I was young but which now seems rather quiet. The CPR was meant to encourage mediation and ADR. It seems merely to have priced litigants out of the court. Those of us who value the rigour,  impartiality and fairness of the British civil justice system – to say nothing of the right to access to justice and the invisible exports – must find ways to change things before they are changed over our heads, or just die of disuse.

Senior Master Whitaker will talk about the court’s expectations of parties and will point out that the obligation to discuss sources of electronic information existed before Digicel v Cable & Wireless – long before we had any cases about the Practice Direction to Part 31 he was heard to say that you do not need case-law to validate a clear rule. There is no doubt, however, that a prominent case helps to focus attention on what is, in this case, a neglected rule.

Richard Harrison of Laytons, one of the more thoughtful litigation practitioners, and an able commentator if his writing is anything to go by, will talk about Part 31 CPR, its Practice Direction and the recent cases. His agenda includes the topic “a new Practice Direction”. Other speakers present (Master Whitaker, Vince Neicho of Allen & Overy and me) are part of a group which is actually producing a new Practice Direction, so we may find out if Richard’s ideas coincide with ours.

The programme has a good balance between speakers from large corporations with experience at the information management end of e-disclosure and law firm speakers with different perspectives on what happens once the lawyers get involved. Two banks, a pharmaceuticals giant and an NHS Trust may not be representative of everyday clients, but they are the  ones who have had, perforce, to break the trail, and what they have to say is important to those who follow after and to those who advise them.

Until last year, e-disclosure conferences seemed to have little of relevance to those who handle litigation in the law firms or for those who instruct them. Things have changed when a Lord Justice of Appeal, and the Senior Master can be found on the same bill as senior information managers in large corporates and solicitors from firms with practical experience of handling electronic documents. 2009 is the year when we have the chance to align the rules and the practice more closely with the expectations of court users.

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