I have just sent off my slides for my keynote speech at the Ark Group’s e-disclosure conference on Monday 9 June. Its title is The Empty Bear Garden, and it is about the decline of litigation since the CPR of 1999 and what we can do to stem that. My conclusion is that we are in a position to turn the tide and will do so if we pay more attention to the balance between rules and discretion, focus more on what really matters and what clients want, and be willing to challenge some of the existing orthodoxies.
Roughly the same period, since New Labour’s election in 1997, has seen the rise of what the Institute for Public Policy Research recently called “intolerant centralism”. The state has become ever more intrusive into our lives at several levels: vast databases record every aspect of our lives; cameras watch our every move; faceless bureaucrats have acquired powers way beyond their abilities; widely-drawn (and badly-drawn) laws give policemen and others in uniform the purported right to exercise a discretion unintended by Parliament; highways officers at the bottom of life’s intellectual pile clutter our roads with notices and urge us to “think”; ministers who appear on the surface to have been merely useless (Jacquie Smith) or deeply stupid (Caroline Flint) emerge as sinister, assuming powers over our lives thanks to their party’s majority which we would never grant them as individuals; MPs behave as if the norms of society do not apply to them, relying on the letter, but forgetting the spirit, of the law; rules multiply, each one having the effect of nullifying our scope and ability to think for ourselves.
The Civil Procedure Rules have expanded in the same way, ditching years of precedent in favour of a wide and largely undirected discretion. I do not place judges on a par with any of those referred to in the preceding paragraph, but there is no escaping that the interplay of greatly increased regulation and largely unguided discretion has led to a lack of consistency in case management which has deprived lawyers and their clients of both freedom and certainty. Neither of the latter are blameless.
We suddenly see a fight-back – and it is very sudden. New Labour has imploded, hated more for its hypocrisy in purporting to direct our lives than for its policy failures; citizens have discovered their voice and exercise it in a way which is more powerful than the occasional visit to the ballot-box; policemen and doctors are rebelling at interference in their professional duties by a ministers who have failed in theirs; blogs, Twitter and Skype are used to outwit the state’s control. Of the ministers whose photographs appear in my slides, two have just resigned, one conspicuously failed to get the Prime Minister’s backing at PMQs yesterday, and Downing Street has had to deny the impending resignation of a fourth whose name had not even been mentioned as a possible resigning rebel.
There is the potential to achieve the same kind of turn-around in litigation and to do so in a short time-scale. The judgment in Digicel (St Lucia) v Cable & Wireless must make the slowest judge realise that the application of the Practice Direction to Part 31 CPR is a duty at not just a right (he or she will at least have no excuse for not knowing it exists, anyway). Lord Justice Jackson has shown both a shrewd grip on the problems and a firm commitment to reducing costs, co-operatively if he can, but ruffling feathers if he must; clients seem at last to be grasping the idea that the remedy lies in their own hands, both as to their internal management and as to their choice of lawyers; and lawyers cannot be slow to grasp the corollary to that.
Labour’s micro-management and obsession with measurement has been characterised as “hitting the target but missing the point” – so, for example, some of the education statistics look great but we are turning out a semi-literate and innumerate generation into universities and the work-place. Much the same is true of the CPR – Woolf’s dream of reducing the number of matters going to trial has been fulfilled, but the reasons are the wrong reasons, and the effect, particularly when coupled with the withdrawal of Legal Aid and the hike in court fees, has been the denial of access to justice. The turning of that tide may be as imminent as the turning of the political tide, and will depend on the individual steps taken by judges and practitioners, not on government.
Ark Group E-Disclosure 2009 is at the Ibis Hotel Earls Court on 8 and 9 June. Speakers include Lord Justice Jackson, Senior Master Whitaker, Richard Harrison of Laytons, Vince Neicho of Allen & Overy and Mark Surguy of Pinsent Masons, as well as representatives of corporations, law firms and suppliers. Two of the e-Disclosure Information Project’s sponsors, Epiq Systems and 7Safe are also sponsors of the conference. Register here.