I interviewed Professor Dominic Regan last week about pending developments in UK litigation. Dominic Regan is speaking at IQPC’s Information Governance and eDisclosure Summit, which takes place in London between 14 and 16 May, where I will introduce and moderate the session. In this interview, Dominic Regan foreshadows the major changes which he will talk about at the Summit.
Chris Dale: Hello, I’m Chris Dale of the UK-based eDisclosure Information Project, which carries information about electronic disclosure – electronic discovery as every other jurisdiction calls it – between judges and lawyers and clients and suppliers. I have with me Dominic Regan who is a solicitor, writer, broadcaster, and an adviser to Lord Justice Jackson on cost management, and on the Costs Management pilot. He is also a professor at City University, London. He provides litigation training to a number of Government departments and to many law firms throughout the UK, and hosts webinars, writes, and generally spreads the word about case management and other aspects of litigation. Professor Regan is due to speak at IQPC’s annual Information Governance and eDisclosure Summit, which takes place in London between 14th and 16th May. His subject there is 2012 – The Most Significant Year in the History of eDisclosure? Like Richard Susskind’s book title, The End of Lawyers?, this has a question mark at the end of it. From where I sit I think that 2012 will indeed be the year of disclosure.
We have just seen a significant judicial opinion in the US by Judge Peck in the Da Silva Moore case, which gives judicial blessing to the use of advanced technology known as predictive coding. The UK Courts have just penalised a party in costs for its disclosure failures, which will help focus minds on the risks of inadequate disclosure. The Richard Susskind line – that law firms will see their traditional practices whittled away by what he calls disintermediation, as others offer the components of litigation tasks at lower and more certain costs – is something else that solicitors have to look out for. And we have the Cost Management pilot coming out of Birmingham, and other aspects of Lord Justice Jackson’s proposals, which are now heading into law.
Dominic, let’s start with a very broad question about Lord Justice Jackson’s reforms. How important are they?
Dominic Regan: Chris, hello. I think they’re the biggest bang that we’ve ever seen in our jurisdiction. Just to give one example, and I don’t know that a lot of attention has been paid to this so far, we are going to see it lawful for lawyers here to act on the basis that they take a cut based on a contingency which, for centuries, has been utterly illegal. Next April, and that is now the target date, 1st April next year, when this kicks in (and we’ll see later that much of Jackson’s already happening in one way or another), but when this kicks in we will have the opportunity for litigation to be conducted, as it is in other jurisdictions, with the lawyers taking a percentage. And if you think that already we see, for example, Russian oligarchs, who could litigate anywhere in the world, coming to London, and we have had one major case already and two more imminent, then it seems to me that this jurisdiction is going to be more important for litigators than ever. And more attractive, I should say, for litigators internationally than ever before.
Chris Dale: What was the attraction to the Russians, Dominic?
Dominic Regan: The attraction to the Russians is that our judges, I have to say this but I think this is a universal view, our judges are seen to be above and beyond any temptation or pressure, let alone overt corruption. We have a new court building, the Rolls Building, for commercial litigation. We have a fabulous tradition of extremely able lawyers. Put that package together, and that really is a quite remarkable invitation for people to litigate here. And they are voting with their feet. Chris, they are coming here. They could go to other jurisdictions, and there are other jurisdictions that are actively pitching for international work, but London, I believe, is very much now the epicentre and that can only get bigger. And on top of that, the Jackson Reforms are going to change the whole of costs and budgeting and planning. It is a phenomenal turnaround. I cannot emphasise how important it is.
Chris Dale: Your first point about lawyers taking a percentage of fees effectively shares the risk between the parties and the lawyers. What else do you see from the list of things that you just gave? What are the key features of Jackson that are going to, as it were, promote litigation, which is effectively implicit in what you said?
Dominic Regan: For a start, in our jurisdiction, for a decade in mainstream litigation, we’ve had this business of no win, no fee, where the losing party could end up paying double costs. That is going to end. So the defendants, if they are the losing party, their costs exposure won’t be as great as it was before, so maybe they feel a greater incentive to fight rather than maybe to settle on purely economic grounds. Your timing in terms of this call is absolutely impeccable, as ever, because remarkably I was having a cup of tea with Lord Justice Jackson yesterday morning and one of the things he said, that I think for our audience and for your audience, and this is more forthright than I’ve ever heard before, he said, right, we’ve now absolutely got to get rid of all paper in our system. He meant paying of fees, commencing proceedings, filing of documents, bundles. He said, people don’t like change, but we’ve got to change; we’ve fallen behind certain parts of Australia, the United States. Austria, he said, has all of this. And there is a real impetus, Chris, I think, that we are going to see our entire process put on an electronic footing, and for those who follow your excellent blog, in particular, it seems to me that those interested in this area are going to have an awful lot of work and openings and opportunities in this jurisdiction.
Chris Dale: Those things you have just talked about, effectively the electronic processing of the court documents, those are things that lie, if you like, between the parties and the court in initiating and managing the process. The conference that you and I are both speaking at in May is focusing on electronic disclosure, i.e. the duty of the parties between themselves, primarily, to exchange information in the cheapest possible way.
Dominic Regan: Yes, yes.
Chris Dale: Sorry, I’m not correcting you there, but it is important to identify for some listeners who often fail to distinguish, I think, between the two points which you accurately distinguish between: the court side of things and what happens between parties. What will all this mean for those involved in electronic disclosure?
Dominic Regan: It will mean – because what Jackson is talking about is not only filing papers, as you rightly say, with the court, but also exchanging documents and vetting documents as between the parties – the whole process is going to move onto a digital footing as quickly as possible. That’s his view. And that, of course, means that for electronic disclosure, and bear in mind what Rupert Jackson very much wants to achieve is to cut costs as between the parties. He said to me yesterday, the days when people thought that litigation had no price to it and that you could spend, that’s over, that’s gone. It has got to be a proportionate and economic approach. And in his report he commended eDisclosure as, in certain cases, and I think perhaps in a growing number of cases, as a method of driving down cost and achieving more efficient outcomes. And Jackson, in a word, is really about efficiency, and perhaps another word as well, proportionality, and the two go hand in hand – doing the job on the best, most effective, economic footing.
Chris Dale: That in turn, the implication behind that anyway, is that the court is going to be more active, making full use of its existing powers as much as anything, in encouraging the parties, forcing them if necessary, to investigate what is the most cost-effective way of managing their task – investigating the true and necessary scope of the task, indeed. Are we going to find judges fit, willing and interested to do this, do you think?
Dominic Regan: Chris, I had reservations, as perhaps your question suggested there, intimated, but certainly when I asked Sir Rupert yesterday he told me that judges are now having costs management training. He said, every single major action should be closely scrutinised at the outset by judges, developing what started, as you mentioned earlier, with the Birmingham Cost Pilot, the excellent pilot scheme under the control of His Honour Judge Simon Brown, QC, no stranger to eDisclosure experts. And that entailed saying to the parties at the very beginning, when they first turn up at court to get directions, for those who aren’t familiar with the English system, effectively the courts give them a route map to get to trial. And the big difference, under Jackson, is that the judges are going to be getting stuck in; they’re not going to be rubber-stamping what the parties might agree. The judges, I think, are going to be absolutely aloof and independent, and they are going to be saying, have you thought about this, why have you not perhaps voluntarily swapped eDisclosure Questionnaires? You can’t spend £88,000 on documents, and you can’t have nine experts, and all this. The very philosophy of litigation is going to be radically altered. That again is something that I think a lot of lawyers in this country, let alone elsewhere, have not appreciated is coming.
Chris Dale: The one point that gets missed, I think, the purpose of case management is effectively, and has always effectively been cost management.
Dominic Regan: Yes.
Chris Dale: So whilst we’re giving it its proper label now, that’s really what the managing of cases has always been about. We have seen a recent report that suggests that the Costs Management Pilot is going in the right direction, but that some of the details, perhaps of the specific forms and that sort of thing, need refining. So far, we don’t have a sample big enough, perhaps, to be meaningful. What is your view on the implications for lawyers and their clients?
Dominic Regan: First of all, lawyers more than ever before are going to have to be upfront with their clients. They are going to have to explain to their clients; they are going to have to give their clients full information at the beginning about the economics of it all. You mention the Pilot. One possibility, which again is a suggestion I’ve made – whether it’s accepted or not – is that we might have different categories of costs information. In the biggest cases we now have a substantial questionnaire. Maybe something simpler at the lower level. But nonetheless, the profound difference is going to be that all acting in litigation are going to need to cooperate with their clients, get an utter understanding, and make sure the client understands where it’s going, and what the downside is if they get it wrong. Because the courts are very keen, more than ever. And this is the big thing about Jackson – that you can’t have costs as an afterthought. Costs are the be all and end all because the process has got to be sensible. And if you can end up with bills that are ten times the damages, then something is seriously wrong, and that is what is going to change, Chris.
Chris Dale: Well, I very much look forward to discussing all this with you. The context, as I said at the beginning, is IQPC’s Information Governance and eDisclosure Summit in London between 14 and 16 May. Professor Dominic Regan is speaking on the subjects that you’ve heard us just talk about. I am to have the pleasure of introducing him and moderating that discussion, and we look forward to seeing you there.
Dominic Regan: Thank you very much indeed. Nice to talk to you, Chris, as ever.
The Information Governance and eDisclosure Summit will take place from 14 – 16 May in London. For more details, please visit the website: www.informationretention.co.uk, call freephone: 0800 652 2363 or email: email@example.com.