Lord Justice Jackson laid down a challenge to litigation support providers at the Ark Group e-Disclosure 2009 conference in London last week. They must, he said, find a way to bring down the cost of e-disclosure; if they cannot, then the basis of disclosure will have to be changed. Other jurisdictions provide a disputes forum which does not require the parties to undertake the vast exercises which are needed for compliance with the existing disclosure regime. The implication was that the old and treasured principle that all the evidence must be rigorously examined is threatened by the brute fact that the cost of conducting that examination is too high.
There is much more to say about this than can be fitted into an account of a two day conference, so I will settle for a bullet point summary of the other elements which contribute more to the costs than most suppliers do:
- We can take a less expensive approach to justice without ditching hallowed principles of discovery (see Lord Justice Jacobs observations in Nichia v Argos at paragraphs 50 and 51 for the best explanation of the difference between “perfect justice” and the “rougher kind of justice” which does not involve looking under every stone
- The biggest single contribution to reducing the costs of disclosure will come when case managing judges start managing cases, especially the disclosure aspect (this is not entirely the fault of the judges who do not manage disclosure – insufficient judicial resources are applied to it, and the judges have no training in the problems or the solutions; nevertheless, there is no other area of the CPR which the judges feel they can regard as optional)
- Litigants whose document sources are a mess cannot blame the system if it costs large sums to sort out the valuable from the useless, the privileged from the non-privileged, the personal data from the business information
- Practitioners who do not know the rules are as much to blame as the judges who don’t enforce them
- Many of the lawyers who assert that e-disclosure is too expensive do so without taking any steps a) to find out what the cost actually is and b) to weigh that against the costs which will be incurred anyway and the savings being made by the technology. To take an analogy which did not occur to me at the time, I am appalled at what it costs me to travel by train from Oxford to London. I have alternatives which are cheaper (the bus, drive or, in extremis, to walk). My calculation of time against effort against expense points to the train despite the cost. The costs of handling disclosure data must be weighed in the same fashion. Almost no-one in England & Wales is doing this.
I set out these points, not to undermine Sir Rupert’s challenge to providers, but to emphasise that there are many components in the costs of document-handling. They are cumulative or iterative to some extent: a solicitor who has no idea about e-disclosure asks a provider for a quotation for a job of which he can explain little; he then exchanges letters with an equally unskilled opponent (perhaps – this obligatory stage is usually omitted); the results end up in front of a judge whose knowledge of the Practice Direction to Part 31 matches his skill at formulating keyword searches; the latter looks at his watch and makes a standard order for disclosure. Most cases reach CMC stage without even this degree of sophistication. The Digicel case Digicel (St Lucia) v Cable & Wireless involved a series of unilateral decisions which were not raised before, nor raised by, the judge at the Case Management Conference. The money had been spent (largely mis-spent as it turned out) before a judge got his teeth into the management of the case.
There is little to be achieved by blaming any of the parties involved in this, but if one was looking for targets, the service provider’s costs looked modest relative to others. The judge’s description of the report of the experts in Digicel as “a series of worst case scenarios” means nothing to the outside observer who lacks the contemporaneous context in which that report was made. The court could have said what it wanted done if anyone had asked or if the judge had self-started on the subject.
I dwell on Sir Rupert Jackson’s challenge to suppliers because it is important that they be bound into the process. One of the complaints about the 1999 CPR disclosure rules is that no-one asked the opinion of anyone who had hands-on experience of handling electronic documents – we offered, but the views of vulgar commerce were rebuffed. What (it was implied then) would a mere supplier – and probably an American one – know about updating the ancient process of discovery which a 1960 Cambridge First in Jurisprudence and 45 years at the bar could not provide? This time the industry has been invited directly to contribute – not the only way this investigation into litigation costs differs from the last. The context is costs, so let’s hear you on how costs might be saved. The arguments are more subtle than merely suggesting cuts in rates.
Much more was covered in Sir Rupert’s session, but his direct invitation to suppliers warrants a post of its own.