I am off today to record a podcast for CPDCast about the e-Disclosure components of Lord Justice Jackson’s report. You may recall that I was booked to do this on the day before the Civil Procedure Rule Committee met to discuss our draft Practice Direction and ESI Questionnaire for the third time. I had got as far as sitting in front of the microphone and completing the sound-check when some intuition made me abandon the whole thing. By tomorrow, I said, we will probably know that the practice direction has been accepted by the Rule Committee, and it seems daft to make a recording which will be out of date tomorrow.
Well, as we now know, the Rule Committee felt unable to pass the draft on which we had worked for 18 months and of which Lord Justice Jackson had said
In my view, the substance of this practice direction is excellent and it makes appropriate provision for e-disclosure. On the assumption that this practice direction will be approved in substantially its present form by the Rule Committee, I do not make any recommendation for procedural reform in relation to e-disclosure.
It took me a while to work out a response which was suitably respectful of the Rule Committee’s decision (if shuffling something off to a sub-committee can be called a decision) whilst simultaneously running with the very great interest which has been shown in these documents. The upshot was my article of 23 February whose title summarises my mood – No need to wait for the e-Disclosure Practice Direction and Questionnaire — just get on with it. I will not repeat here what I spent most of a day and more than 2000 words saying there, but the gist of it is that the existing rules, supplemented by our questionnaire, give ample scope to parties and judges to shape disclosure to the needs of the case. The PD is essential to give it authority but, if we cannot have that yet, there is plenty which can be done without waiting for it.
That is what I will say in the podcast, after spending another day refining the argument – it is not that the argument is difficult, merely that a 20 minute recording is a far less forgiving medium than the equivalent time on a podium.
The plan more less writes itself from here. I have held back on regional tours pending the Jackson Report and the practice direction and questionnaire. The Jackson Report gives us what we need as an agenda – we must face up to electronic documents, he says, the technology must be seen for its value to be understood, the rules matter but discretion matters as much, judges must manage, case management is costs management, and the rest. These are good, strong messages to take out from Jackson to those who are interested in winning clients back to litigation.
In between the drafting, I am building alliances with those who can help, and taking appointments to take part in events ranging from short lunch-time talks to a three-day conference. The format which we ran last year in Birmingham and Bristol – sessions which combine a focus on the rules with a sight of the technology – can now be revived. Page views on my blog are well up, from UK and international sources alike. There is a lot going on in the background which points firmly towards a new climate. There is much to talk about with those who sponsor what I do and those who are thinking of doing so.
There is a paradox which I cannot explain: the week in which I reported on largely international matters following LegalTech gave rise to a high proportion of UK-derived page views. In this week, when my focus has largely been on the UK, the largest single source of page views was the US. There is a contrast between the direction apparently taken in US discovery following Judge Scheindlin’s Pension Committee decision and the focus on cost-reduction which the Jackson report has brought to us. There is a sense of growing common interest between all the jurisdictions whose rules require the giving of discovery. I have had communications this week from Australia, Hong Kong, Singapore and Canada as well as the US. HHJ Simon Brown QC is speaking in Sydney shortly. It seems likely that I will be there in June and, I hope, in Singapore, Hong Kong and Canada as well at some point. I will be in Edinburgh in a couple of weeks – more about that anon. The messages are the same, whether in Leeds or Toronto, Birmingham or Sydney, and they pass both ways — I am, if anything, more interested in listening in these places than in speaking.
The side-lining of our practice direction and questionnaire is a bump on the road, not a roadblock. The thinking behind them is as important as the eventual decision about them by the Rule Committee’s sub-committee. Let’s get on with it.