Those interested in judicial management of disclosure might like to look at the judgment of the Court of Appeal in Fiddes v Channel 4, delivered on 24 March but published on BAILII only on Friday.
The case is interesting for several reasons: it is an e-disclosure case; it is a libel case, thus showing that e-disclosure pops up everywhere; it involves the other Jackson, the late Michael; it considers questions of proportionality where the cost (in this case of examining backup tapes) is balanced against the likely value of what might be recovered. More important than all this, it shows a Court of Appeal upholding a judge’s decision although far from convinced that they would have arrived at the same conclusion as he did.
I will spare myself and you a summary of what it was about or what was said, apart from a couple of brief references. The judge is quoted as saying:
I accept that in an ideal world, the claimant should have disclosure of the e-mails sought, but it is not an ideal world.
That, as regular readers will instantly recognise, takes us straight back to Lord Justice Jacob’s words in Nichia v Argos about how “perfect justice” may have to take second place to the realities of time and cost (read paragraphs 46 to 54 of Nichia for the context).
Lord Justice Pill (who, as it happens, was also involved in Nichia) says of this sentence:
I comment very briefly on the judge’s use of the expression “ideal world”. In my judgment, an ideal world does require that limits be placed on disclosure but that is I daresay a philosophical issue which need not be debated further this afternoon.
I do not myself see anything “philosophical” about it. Limits must be placed on disclosure, and it is a matter of commerciality, proportionality and management, not philosophy, to decide what they are.
It is worth quoting this also from the Pill LJ’s conclusion:
the essential question is whether this is an appropriate case in which to reverse the finding of the judge. Tugendhat J is a judge experienced in this field. What is more he had the handling of the case and he conducted earlier interlocutory hearings, which would have made him well familiar with the issues in the case and the impact of the application made. His conclusion in the last sentence of his judgment was in my judgment justified :
“…the claimant cannot in the present case show that there is a sufficient likelihood of retrieving any email that is both relevant and significant, and on that basis, I dismiss this application.”
The judge had all the relevant material before him and heard the submissions on it. He had a broad discretion. Other judges might possibly have reached a different conclusion but, having considered the material before the court and his judgment, this is not in my judgment a case in which the court should interfere with or reverse his decision.
Lord Justice Wilson put succinctly the point about judicial discretion:
In the end I have had firmly to remind myself that in this court we do not sit in the shoes of the judge. I am far from sure that, had I been ruling on the application at first instance, I would have reached the conclusion which he reached. But our task is to review his discretionary case management decision from what one might compendiously describe as the distance identified in the well-known jurisprudence. It is therefore not enough for me to consider, as I do, that the judge’s decision may not have been right. Mr Sherborne accepts that, in that the judge paid at any rate some regard to all the factors specified in Rule 31.7(1) and in paragraph 2.4 of the Practice Direction supplementary to Part 31, he must persuade us that the decision is plainly wrong. Like my colleagues, I conclude that, for the reasons which Pill LJ has given, he has failed to do so.
The very fact that the Court of Appeal judges were doubtful about the decision but upheld it anyway gives power to the elbow of case managing judges exercising their discretion to do what is right on the facts before them. No judge likes to be overturned on appeal and it is, perhaps, easier to grant an application for specific disclosure than to refuse it. This judgment suggests that, provided the judge sets out reasoning which is tied closely to the overriding objective, then his judgment is unlikely to be appealed successfully.
Relatively few cases about specific disclosure get as far as the Court of Appeal – there comes a point when the requirement that case management itself be proportionate militates against appealing such judgments. It will be interesting to see what happens at trial, if there is one, when the circumstances described in the judgment become the subject of cross-examination.
As an afterthought, one wonders sometimes about the alleged expense of getting data off tape. It seems that quotations were in fact obtained in this case. I would not want to find the case cited in due course as authority for the proposition that tape is automatically too expensive to deal with. It depends who you ask, amongst other factors.