I wrote a post in anticipation of Epiq Systems London Showcase on 8 November, focusing mainly on the scope and depth of the consultancy services and software options which are available to lawyers and their clients from broadly-based providers like Epiq.
All that and more was on display at the well-attended evening in the Barbican, and anyone who wanted to find out more about Epiq’s own DocuMatrix, Clearwell, kCura and Nuix, to say nothing of Epiq’s document review services, had ample opportunity to do so.
The highlight of the evening, however, was a talk by Professor Dominic Regan who, as an adviser to Lord Justice Jackson and official observer of the Birmingham costs management pilot, is better placed than almost anyone to tell us what is happening in the wider UK litigation world and what we can expect.
Epiq’s International Managing Director Greg Wildisen opened the formal part of the evening with a brief survey of wider developments and the expanded software and service offerings which Epiq can give following its acquisition last April of Encore eDiscovery Solutions. That done, he turned the podium over to Dominic Regan.
Dominic began by expressing his conviction that most of Lord Justice Jackson’s proposals will happen. At the time of writing (and this comes from me, not Dominic, and only emerged this week), it seems possible that they will be deferred, largely thanks to the inter-relationship between some of them and the proposed legal aid reforms which were themselves not part of Lord Justice Jackson’s recommendations (an important point this, since many people, including the Law Society, have conflated the two things, either through ignorance or because it suits their agenda). Dominic emphasised that Lord Justice Jackson was particularly and expressly against the removal of legal aid from healthcare litigation. The delay is not likely to be a long one and, as Dominic observed, the progress through Parliament is well advanced.
Dominic touched briefly on damages–based agreements which, he said, were mainly for richer, sophisticated clients. Clients are free to agree what they wish with their own lawyer, but recoverability will be limited. We were, he said, going to see a scale based on how much a case settles for, not the hours worked, which would provide strong incentive for the lawyers to finish the job quickly. This would have a direct impact on the management of eDisclosure since, perhaps for the first time, lawyers would have an interest in finding out how they could do the job as cheaply as possible. EDisclosure vendors can expect calls from lawyers with a new incentive to minimise disclosure time and cost.
Dominic then turned to the Birmingham costs pilot, which applies to every Mercantile and construction case and was, he said, a “great success”. It was, he said, “all about the judge rolling up his sleeves and getting stuck in”. He identified HHJ Simon Brown QC in particular. Judge Brown expected to hear about costs in advance from lawyers who knew about the case. The court’s questionnaire asks, right at the beginning of the case, what team would be deployed and what they were going to do, which Judge Brown supplemented with questions like “why do you think you can justify that?” when, for example, parties wanted large numbers of experts. Judge Brown would perhaps ask, for example, if the lawyers had gone to tender for expert evidence, with other questions aimed at ensuring that someone had at least thought about cost and value.
Dominic touched on proposed changes to Part 36 – damages will go up by 10% if an offer is not accepted, as an encouragement to defendants to make offers. The general principle here, he said, was that “we have all failed” if the case goes to trial.
Clients will shop around, he said, and lawyers will have to look for the best way of doing the job at the lowest cost consistent with maintaining quality. Disclosure in particular, he said, “screams out for efficiency gains”.
Dominic Regan touched on other subjects – the “hot tubbing” of experts, speedier court assessment of claims for costs, and the electronic issue of claims were on his list. The government, he said, is the greatest single beneficiary of reforms and has that incentive to see the reforms through.
We would, he said, see an increasing role for costs lawyers and costs experts. The best-known authority on costs, former judge Michael Cook (the author of Cook on Costs), was on the platform with Dominic. The key question, Michael Cook said, was whether we decided proportionality at the start or at the end of proceedings. This has always been done retrospectively, but that must change.
I once heard one of Dominic’s regular listeners say “Dominic brings all litigation questions back to costs”. This was not a criticism and, if it was, it was misplaced. The overriding objective emphasises proportionality; proportionality and, indeed, justice are meaningless concepts without a focus on the ratio between cost and value. The proposed reforms are wide-ranging, but a consistent theme is how justice can be delivered at the lowest cost – that was, indeed, Lord Justice Jackson’s remit.
As in so many other things, market forces alone have failed to bring down costs. Recession and competition have had some effect on lawyers’ hourly rates and providers’ per gigabyte charges, but these are pinpricks compared with the savings which could be achieved if we can effect a cultural change in the approach to managing cases, to questioning what work is really necessary and to limiting costs recoverability between parties. Between them, these changes give real incentive to parties, and encouragement to courts, to concentrate not just on proportionality but on absolute cost.
This was a valuable evening, combining an understanding of the coming policy changes with an opportunity to see the tools which will make it possible for lawyers and others to be profitable even under the tighter regime which is coming. As usual, Epiq managed to mix the educational element with good company and high-quality food and drink.
There are bigger versions of these pictures, plus one or two more, here.