John Craske, Head of Business IT at Dundas & Wilson LLP has contributed a guest article to the Orange Rag which hints at disappointment in the Scottish Civil Courts Review.
I wrote briefly about the Report of the Scottish Civil Courts Review on 7 October, shortly after its publication (see Scottish Civil Courts Review), and promised further comment in due course. I drafted an article about one aspect which interested me – the role of the courts in mediation, on which the Report and I come down on the same side in what has become known as the Woolf v Genn debate – but somehow never quite got back to it.
This was, I think, because there was disappointingly little in the Report about either the use of court technology or about electronic discovery. The report acknowledged the need for better case management, but my overriding feeling, without reading the chunky second part in detail, was that technology, whether of courts or in the hands of parties, had been ducked, with a few laudable statements as to how important it might all prove one day.
That, broadly, seems to be the conclusion of John Craske, Head of Business IT at Dundas & Wilson LLP, whose guest column yesterday in the Orange Rag is headed Scottish Civil Court Review – a missed opportunity? He says of electronic discovery that the Report “takes the view that there is no appetite in Scotland for widening the discovery process to the same extent as has happened in England – mainly because of the potential cost impact at the outset of a case”.
It is right, I think, to conclude that the Report’s authors rather hope that judicial management will somehow sweep up the handling of discovery with other aspects of driving cases along. If our experience in England & Wales is anything to go by, that is a false hope – we actually have provisions in the rules about the handling of electronic evidence as well as express obligations of active management, and judges have contrived to ignore them completely unless a dispute emerges between the parties. That is reactive fire-fighting rather than active management.
The conclusion that it is all too expensive to consider electronic documents equals a decision to ignore most of the contemporaneous evidence. If that is indeed what the Report means, then perhaps it should have said so. The implied conclusion “We consider that justice can best be served by ignoring the documents which passed between the parties at the time the dispute arose” would have been a more constructive approach than pretending that they do not exist. They do exist and they matter, and vague expressions of hope that someone will manage them does not seem the approach best calculated to bring big litigation to Scotland.
Nor is it just “big litigation” – the judgment in Earles v Barclays Bank Plc  EWHC 2500 (Mercantile) was delivered a week after the Scottish Report came out. It was not a big case and its focus was not so much on the electronic documents per se – it rather took it for granted that most of the documents were electronic – but on the importance of contemporaneous documents to a fact-finding judge. This is not “widening the discovery process” but recognising that the evidence lies on computers and not in paper files.
The wind in the grass – in the form of visits to my web sites from Edinburgh firms and other indirect and anecdotal evidence – suggests that there is increasing interest in e-disclosure / e-discovery from Scotland. If the Civil Justice Report does not imply any great move towards that aspect of efficient case management, it seems unlikely that the clients will sit back whilst the establishment continues its policy of waiting to see what everyone else does. The assumption and assertion that e-discovery means high start-up costs has two defects: one is that the documents exist and must be dealt with, they cost money to print and read, and simply ignoring them is hardly an option; the other is that few people (on either side of the border) seem to think it necessary to find out what the costs – and savings – might actually be before opining on the expense.
The bigger commercial firms, like Dundas & Wilson, with large litigation teams and EU regulatory and competition practices, are unlikely to await judicial developments. As I read the report, the Scottish courts will be willing to embrace anything which helps court and parties “make the best use of resources and ensure that cases are dealt with in ways which are proportionate to the value, importance and complexity of the issues raised” as the Report’s introduction (quoted by Craske) puts it. There is nothing to stop the Top 10 firms in Scotland agreeing that any litigation between their respective clients will start with a discussion about the best way to handle electronic documents in a manner which is efficient for all parties.