The best judicial advocates of proportionate electronic discovery emphasise that, however significant the costs and other implications of discovery, they are but a part of a wider duty to make justice affordable. That duty is distributed – it lies with the judges charged with managing cases and those who devise the rules and procedures; it falls on lawyers and on their clients whose justice is at stake; it is part of the duty of government. Lord Justice Jackson touched on all these in a speech in Singapore which began with Plato and Aristotle and, precisely 45 minutes later, came back to them. The occasion was the International Conference on Electronic Litigation organised jointly by the Singapore Supreme Court and the Singapore Academy of Law.
I do not usually rush out reports of speeches on the day of their delivery, preferring a more leisurely approach with reflective comment. This is a straight transposition from my notes, with little critical or or analytical thought applied.
The evidence in Aristotle’s day, Sir Rupert said, fell within a manageable compass. The instant communications now critical to business were not a boon in all respects. They remain in permanent form to be studied by those with the time and motive, subjected to a full and painstaking analysis by lawyers, and generating “prodigious and sometimes terrifying costs”.
We will hear, he said, that this expense can be mitigated by electronic means. It is true, sometimes, that close scrutiny by lawyers does yield dividends, as he heard in a recent case where huge sums spent on the analysis of metadata showed that certain crucial documents were created after the event, with a substantial impact on the outcome of the case. Very often, however, huge sums are spent to little benefit; incautious comments made by parties in emails may be good material for cross-examination but do not usually affect the outcome of the case.
The central question was how to manage discovery at proportionate cost and how to tailor it to the case. Sir Rupert paid tribute to Senior Master Whitaker’s work producing the EDisclosure Practice Direction and Electronic Documents Questionnaire which, he said, is making a major contribution in dealing with electronic material. Lord Justice Jackson said that he is seeking to build on the practice direction by developing a rule known as the “menu option. The principle behind this is that we must move away from standard disclosure as the default option and make judges and parties undertake a more rigourous analysis of the issues before an order is made tailored to the requirements of justice.
The menu will include the following:
- an order dispensing with disclosure
- an order that a party disclose the documents on which it relies,
and any specific disclosure it requires;
- an order for issue by issue disclosure on the material issues;
- an order that a party give standard disclosure;
- an order for disclosure which may (i) enable a party to advance his own case or to damage that of the other party or (ii) lead to a train of enquiry with either of those possible consequences;
- any other order in relation to disclosure that, having regard to the overriding objective, the court considers appropriate.
Sir Rupert said that he would liaise with Master Whitaker to mesh the final version of the menu option with the practice direction. The intention is that it will come into force, with other things, in October 2012.
The “other things” are a general reform programme now in progress in England and Wales. His detailed terms of reference included a requirement to review procedures in other jurisdictions. In addition to this, he gathered data from judges, from insurers and from others with an interest in and knowledge of the litigation process. A consultation period allowed the “warring factions and vested interests” to make representations, and the report was published in January of last year.
The report identified 16 causes of high costs of litigation which, in summary, were as follows:
- Rules requiring time-consuming procedures to be followed
- Complexity in substantive law
- The costs rules
- Insufficient understanding by judges and lawyers of the law of costs or how costs should be calculated
- The fact that lawyers are paid by the time spent on a case rather than by their work-product
- The uncontrolled recoverability of hourly rates
- The preparation of witness statements and experts reports
- The perverse incentive provided by the costs-shifting rules
- Conditional fee arrangements
- The sheer volume of e-mails and the cost of disclosure
- No effective court control of pre-action costs e.g. of pre-action protocols
- Lack of active case management
- The fact that some cases which ought to settle do so too late or not at all
- Cumbersome costs assessments procedures
- Court fees set too high
- Civil courts under-resourced despite high court fees
It is a hopeless quest, Sir Rupert said, to try and legislate for every eventuality. The key, or one of them, lies in better training for judges and lawyers in relation to costs – they must learn to budget before the event, as lawyers are supposed to do vis-a-vis their own clients anyway. Some, he said, are good at this; others better at totting up the bill afterwards. The bar has taken “a lordly lack of interest” in the whole subject. It is no longer acceptable for the judiciary to distance itself from the subject of costs – they are good at assessing damages but need to develop the same skills in relation to costs.
To take one example, the costs of witness statements and expert evidence needs tougher case management. The Civil Procedure Rule Committee agrees with him on this, and this, like the menu option, is being held over until next year.
Proper case management requires greater judicial continuity. We need to move more towards docketing of cases as every other jurisdiction is doing – court administrators prefer the flexibility of the present system and judges like a varied diet, but the experience of docketing in Australia has been a positive one. It is being piloted in Leeds.
We also need more robust enforcement of time limits and court orders. Parties are too often let off the hook, and Sir Rupert has made recommendations which, again, have been accepted by the Rule Committee but postponed until October next year. He commended Singapore’s example in cutting through its backlog by tough enforcement
Similarly, he said he was impressed by the excellent Singapore court systems which he had seen, including the new integrated system which aimed to reduce the time taken to get a case through the court, including the lawyer time. He was urging our authorities to build a similar e-working system.
Some jurisdictions are affected by things which do not affect others – Singapore does not have conditional fee agreements and after-the-event insurance, for example.
In addition to draft rules, there were various pilots in hand such as the docketing pilot in Leeds already referred to. Another such was the idea of concurrent expert evidence, “hot-tubbing” is it was known, which is being piloted in Manchester. Hot-tubbing has proved successful in Australia and he is hopeful for the Manchester initiative.
He turned turn next to the problem that lawyers are paid by the hour and not by their work product. This is relatively easy to deal with in lower value cases which can be dealt with by fixed costs. This, he said, is not feasible in common law jurisdictions for high-value cases where the costs must be managed pre-emptively. The essence of the proposed approach is that, at an early stage, solicitors must prepare a budget for their own clients and share this with the court and with the other side. The court hears argument and may approve or modify the budget and and then seek to manage the case in line with the budget. Litigation, he said, is the only type of project conducted without a budget, yet litigation is no less undertaken for business reasons than, for example, construction projects.
Many lawyers, he said, had thrown up their hands in horror at this idea. The court users, however, think it a good idea and very much want to know what costs are likely to be incurred on their behalf.
A pilot has been running in Birmingham in the Mercantile Court and the Technology and Construction Court on a volunteer basis, that is, only where both parties agreed. Parties on both sides said that it was helpful to know both what costs they were likely to be awarded if they won and what they might have to pay the other party if they lost. In addition to the Birmingham pilot, costs management has been piloted in defamation cases in London, with a revised pilot due to start in October this year based on the Birmingham experience.
When his report came out, he said, the government of the day was kind enough to say that they would implement it. The new coalition government had more immediate priorities, such as the deficit, and he assumed that his labours would be wasted and that his work would gather dust. The new government did in fact read the report, and consultation followed, the government indicating that it intended to retain most of the recommendations. The bill had had two readings in the House of Commons and would then go to the Committee Stage before passing to the House of Lords. If approved, it was likely to come into effect in October 2012 at the same time as, and as a package with, the procedural reforms described above.
Singapore, Sir Rupert said, has achieved a judiciary-led series of reforms and a change of culture. He hoped that it would prove possible to achieve a similar change of culture in England and Wales.