It was a privilege to be asked to be one of the rapporteurs at the end of the International Electronic Litigation Conference in Singapore. Bryan Ghows of UniLegal LLC spoke to one group and I the other, with ten minutes to round up the proceedings. Unusually for me, I actually wrote down in advance what I intended to say, and I give it here as the finale to my series of articles about this excellent conference:
It is proper, at an occasion like this, to address by name or title all the most important people in the room. There are many of you and I have only ten minutes so I will instead simply address “Kind hosts and welcome guests”.
I should say that listening to speeches during lunch is one of my pet hates at these conferences – you have just got a good flow of conversation going and then have to break off and listen to someone speaking. I tried to get out of it by suggesting to Senior Assistant Registrar Yeong Zee Kin that an audience of this calibre does not need to be told what they have just heard, but he said it was proper and it is there in the programme. There is, perhaps fortunately, not much time, so I will pick what seemed to me to be the most lasting points.
I got off to a good start here by sitting next to Justice Rajah at dinner. He was eloquent about Singapore’s ambitions to be an international hub not only for legal business but for legal education as well. Now that I have been here for a couple of days I see that this attitude is characteristic of the senior people at the courts here.
At the same dinner, Sir Rupert Jackson made the point that electronic discovery is just one element of case management, and that case management is just one component of the litigation process. The Chief Justice made the same point in his speech the following morning, explaining the wide range of this conference. He took us through the reforms which have happened and are happening now, and through the ambitions, saying of his staff that he “set them a very high bar”. They seem to be reaching it.
When I wrote about his speech that night, I mentioned the “integrated” approach which Singapore takes to the management of the litigation process. I said this:
“By ‘integrated’, I mean that everything from Singapore’s ambitions in its region down the access to individual justice is treated as part of a single endeavour”.
That, alas, is not true of the UK at the moment. It is one of the areas in which Singapore is ahead of us.
Those of us from the UK feel, however, that we have something to tell others about our disclosure rules. That is not be confused with any misplaced pride in how they are used by most most judges and lawyers, where we have a long way to go. In Lord Justice Jackson and Senior Master Whitaker you heard the best which we can bring you. They are spoken of with respect even in the US, not a place much minded to hear from others on this subject.
We feel that in Singapore we got as good as we gave in ideas for improving the processes and from this rounded approach to the delivery of justice which you have here.
Sir Rupert Jackson gave us a good summary of the ground being covered in the UK, with barely a hint of the very great battles which he has fought and is fighting still. I had occasional glimpses of the work in progress and was in awe of his ability to assimilate information, distill it, and produce clear explanations and recommendations. Civil law reform in the UK is too much a matter of individual initiative and, as Sir Rupert put it, of “warring factions and vested interests”, of rearguard actions and dogged persistence. I would like to take this opportunity to pay tribute to Sir Rupert Jackson for his work on his report and its aftermath. I pay tribute also to Senior Master Whitaker, who was a lone voice in the wilderness for years promoting the subjects on which you heard him speak yesterday.
Sir Rupert told us of the 16 factors which he had identified as contributing to the cost of litigation, and of some of the remedies which he had proposed, many of which are in hand. He told us of the “menu option” intended to force judge and parties to decide what was the right scope of disclosure for this case; he talked of docketing, “hot tubbing” of experts, training for judges on both electronic disclosure and costs, more robust enforcement of time limits and of court orders, and of more active case management and costs management.
Sir Rupert complimented Singapore on its judge-led reforms and the cultural change which they were effecting. He hoped that we could achieve the same in the UK, and spoke of the value of conferences like this – not that there has been a conference quite like this.
Sir Rupert and I disagreed on one thing about his preliminary report which is relevant to Singapore. I went to see him to query why Peruvian Guano discovery remained an open option. He patiently explained why it was necessary for certain types of case, but I remained unconvinced until I saw his menu option fully set out. You in Singapore are considering the fate of Peruvian Guano discovery. I hope that you do not scrap it completely.
Steven Whitaker said that he was proud of the connection between the Queen’s Bench Division and Singapore which, he said, will persist for as long as he is Senior Master. You may care to note that this is probably about eight years, so make the most of it.
Master Whitaker suggested that common law discovery as we know it looks pretty indefensible compared with some civil law procedures. It was trite, he implied, however important, to say that we must get better at the scope of search, have better case management and cost control and training. We need a different culture, especially in those companies which must expect to litigate. The court must make it its business to encourage proper document retention policies, if necessary by punishing in costs those who are not ready for the litigation they engage in.
He said that the courts must be willing to accept that old methods of searching are expensive, and must embrace new technologies. He emphasised the importance of the scope of search and said that we cannot look under every stone because the cost of doing that is too high.
The approaches are broadly the same in every jurisdiction, he said. We must keep sharing ideas.
Justice Rajah, in his speech this morning, reminded us (amongst many other things ) of four constants: that lawyers are always resistant to change; that failure to adapt can marginalise you – something which applies to jurisdictions as well as to businesses and individuals; that change is not an end in itself but a means of delivery of justice; and that, as the Chief Justice had put it in his speech, resistance to change is futile.
In addition to discovery and court processes, we have heard about preservation, about electronic evidence from Stephen Mason, about social media and about videoconferencing. This breadth, in a conference of less than two days, certainly met the ambition to deal in the round with electronic litigation.
I think I am the last man standing amongst the guests. On behalf of all of us, I thank the Chief Justice, the Supreme Court, the Singapore Academy of Law and the Conference Chairman for organising this conference and for inviting us. I would like to thank in particular Senior Assistant Registrar Yeong Zee Kin. He talked with us a year or so ago about the plans for this conference. None of us imagined that it would attract 350 people from 36 countries.
Speaking for myself, I would like to adopt what Steven Whitaker said about being proud of the connection with Singapore. Justice Rajah has invited me back – he probably says that to everyone, but I will hold him to it.