If you wade through all the sex and celebs, fashion, make-up and gossip which comprise the bulk of The Times these days, you can occasionally still find good articles on legal matters, usually written by the excellent Frances Gibb. Their former influence has been diminished by the fact that the Times has disappeared behind a paywall – I express no view on that beyond mourning the former ability to point you to articles of interest.
An article of 2 September was headed Commercial Court goes modern with a woman head judge and new building which, as its title implies, was largely about the appointment of Mrs Justice Gloster as head of the Commercial Court and the imminent move of the Chancery, Commercial and Technology and Construction Courts to the new Rolls Building.
Mrs Justice Gloster has long been influential in case management matters. I once heard her describe voluminous paper bundles as “counsel’s comfort blanket”. The whole Times article is an interesting one, so it is a pity that you cannot read it. I will, however, set out what it says about disclosure:
The big issue that still needs attention is disclosure. Court users “look both ways” on this: some think that existing wide powers to limit disclosure are adequate, she says. Others think that there is a huge cost in disclosure – even when honed down.
“I think there should be a menu of disclosure options, which is what we submitted to Lord Justice Jackson [for his report on civil justice]. So, in a fraud case, you might want very wide disclosure and that will still be an option. But there is room for more targeted disclosure. The judge, in case management, has to identify what in any given cases are the appropriate disclosure targets – what is necessary and what is not”.
Gloster is also launching training judges in the e-disclosure (as endorsed by Jackson), in conjunction with city law firms. “We all think we know how computers work. But if we are ordering different types of disclosure …. it will be useful to have a grasp of how you can use search terms, define issues, limit it.”
Many commercial court users will already be well versed in all this. Grasping the technology is, in many ways, the least of it – you can always hire somebody to help you with that. What is very much harder is the cultural change which will be required if we are to see the costs of disclosure come down. There is a new set of skills to learn, which take the technology for granted and assume some knowledge, at least, of the rules. These things, however, are just the building blocks; the real skill will lie in assembling the facts about document sources without making a meal of it, and crafting the arguments which will persuade others – your clients, opponents and the court – that you have a plan which meets the requirements of justice and of the rules without spending more time and money than is necessary.
The reported experience of those who practice in the Commercial Court and the TCC is patchy: one hears of parties being sent away from a case management conference because they were not sufficiently prepared to discuss disclosure; at the other extreme, I have heard a judge in one of these courts (I will not say which) saying that his idea of case management is to “send the parties away to agree a protocol” – what you might call the “Pontius Pilate” approach to case management.
These are grown-up courts where the judges have a reasonable expectation that those who appear before them will have done their homework and will know what they are talking about. This comes with the corollary that the parties are entitled to expect consistency as between judges. There are certainly cases where it is right to send the parties away to do better next time; it is not necessarily wrong to invite the parties to come up with their own proposals, but they are entitled to expect both a steer as to what is expected and an informed eye cast over their agreement. Pre-CMC discussions are a waste of time if the parties cannot anticipate, in broad terms a least, what the judge will expect from them.
The judges in the Commercial Court and the TCC have their own motives for good case management, since, if the case comes to trial, it is likely to be heard by the judge who managed it. I have quoted before a nice line given by Sir Rupert Jackson when the point was made to him about the need to prepare for every whim of the trial judge: “you mean that the judge who manages a case should be estopped from complaining about it?”. Exactly so: the need for “counsel’s comfort blanket” diminishes if counsel has a pretty good idea of what will be expected in court. It is for the judge to define that.