Collecting evidence for Ofsted and its parallels with e-Disclosure

Here is a nicely ambiguous Google search. My blog stats include a list of the terms which people used to find the site, and one from earlier in the week was “collecting evidence for ofsted”. The search was presumably made by some poor blighter trying to run a school. Instead of concentrating on educating children, he or she must instead collect evidence about something which Ofsted requires. One of the more amusing aspects of a recent e-disclosure case was the contrast between Ofsted’s officious punctiliousness  in demanding information from schools and its own incompetence when required to produce documents in the Sharon Shoesmith litigation.

Ofsted is the Office for Standards in Education, Children’s Services and Skills. The mismatch between its name and its acronym derives from the empire-building of the last Secretary of State for Education, the unpleasant Ed Balls who, baulked of his ambition to become Chancellor of the Exchequer, renamed himself Secretary of State for Children, Schools and Families. There is a certain type of politician who thinks that he gains lustre by having more words in his department’s name, and one of the many grounds on which Balls was loathed by almost everyone was the way he used the breadth implied by his department’s new name to stick his oar into anything which involved young people, however peripherally. His successor restored the name Department of Education so quickly that one suspected that the signage had been commissioned before the election, emphasising the commitment to what really matters. It is that which provides my link to client objectives in litigation.

The Google searcher would have found my site because I use Ofsted’s conduct of its disclosure in the Shoesmith litigation to illustrate how disclosure failures are more often the product of stupidity, ignorance and indolence than of any misunderstanding of the law. Some paper-shuffler missed the fact that his My Documents folder included a sub-folder clearly marked “Haringey Inquiry” and a mail folder similarly entitled, and had to confess to this just before judgment was delivered. The judge has demanded to know how this happened.

Ofsted in fact turns up twice in my lectures. One of my themes is an attack on the plodding procedural approach to disclosure obligations which collects everything apparently caught by the definition of a disclosable document, which reviews most of it, and then exchanges the result with opponents. This is expensive, is generally not required in any sense which bears on the outcome, and is not what the client is paying for – well, it is in fact what the client is paying for, and how, but that is not his objective.

The relevant quotation in my slides is from Eileen Munro, Professor of Social Policy at the LSE, who said in a recent interview “the system has to be designed to help us make better decisions about children. At the moment it is designed to keep Ofsted happy”. I use it as an example of “hitting the target whilst missing the point” which is New Labour’s epitaph as well as a neat way of describing e-disclosure as it is commonly conducted. In my talks, this tees up the contrast between disclosure as unthinking compliance with the bare rules, and the use of discretionary management illustrated by Master Whitaker’s judgment in Goodale v Ministry of Justice.

I’m sure there are intelligent people at Ofsted who are passionately interested in improving education. The general perception of that organisation, however, is of dull-minded box-tickers who measure a school’s quality by reference to its health and safety procedures for pencil sharpeners and by its equal opportunities policies in the provision of lavatories. See the third and fourth paragraphs of this article by Jill Kirby of the Centre for Policy Studies in The Times last week with the conclusion “No wonder childminders have been quitting at the rate of 12 a day since the [Children’s Plan] programme was introduced”.

My point of introducing this into my talks is that we are driving clients away from the courts by a similarly dull and mechanistic approach to handling disclosure. I am clearly not against a requirement to provide relevant information – I am, after all, a part-author and avid promoter of the ESI Questionnaire which was annexed to the judgment in Goodale. The key word here, however, is “relevant”. The point of the Eileen Munro quotation above is that we need to make “better decisions” about disclosure, and not merely meet formulaic requirements in purported compliance with the rules.

I derive enormous pleasure from seeing the bullying box-tickers brought low by their own failure to comply with simple and obvious procedures. There is more to the parallel, however, than mere compliance with the rules. HHJ Simon Brown QC in his judgment in Earles v Barclays Bank made much of the defendants’ ignorance of the rules (it is, he said, “gross incompetence” not to know them). His real concern, however, was that time and costs were actually wasted producing documents which had no bearing on the issues whilst omitting those which, had they been produced, would have killed the claim long before trial.

An Ofsted pen-pusher would not understand this approach – the saving of time and costs is not a concept which means anything to a civil servant after eleven years in which funding dropped magically from government and where the burden of processing irrelevant data was simply an excuse to recruit more paper-shufflers. It sure as hell means something to clients, however, and did so even before the recession focused minds on every pound spent. Judges and the lawyers who appear before them have got to learn to identify what really matters as early as possible in the process. The ESI Questionnaire, active case management, and the proportionate use of technology all have their part to play in this. We are not collecting evidence to satisfy some arbitrary notion of compliance, as schools must “to keep Ofsted happy”, but flushing out what really matters for justice to be done.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Court Rules, Courts, CPR, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Litigation. Bookmark the permalink.

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