He that is without sin among you, let him first cast a stone

You will all by now have seen or heard about Mr Justice Ramsey’s judgment in West African Gas Pipeline Company v Willbross Global Holdings Inc in which the claimant was ordered to pay certain costs to the defendant arising from a series of defects in the claimant’s electronic disclosure. You get some idea of the scale of it from the fact that the judge felt unable to quantify the costs and sent them off for detailed assessment, ordering £135,000 be paid on account.

So what? Yes, I mean it. So what? What new law is there here? What do we learn from this case about electronic disclosure that we did not know before? Disclosure on the scale required for this case is a difficult and complex business. Lawyers owe a strict duty to the courts and to their opponents as well as to their clients. The parties themselves have onerous duties.  Massive sums are spent on both sides, both by those giving disclosure and those dealing with what comes in on exchange. The potential for it all to go wrong is very high, and the prime responsibility falls on the lawyers with the conduct of disclosure.

But, I hear you say, you are usually very critical of firms who foul up their disclosure exercises. Indeed, but I can recognise the difference between a firm who does not know the rules, and who has never heard of the relevant practice directions nor read the cases, and one whose disclosure project just went horribly wrong. No one is suggesting that Herbert Smith is anything other than expert in litigation and, whilst tall poppy syndrome may give some gratification to rivals, the proper reaction should be “there but for the grace of God go I”. Indeed, the very fact that it was Herbert Smith of all firms which was on the receiving end of judicial reproach (twice in a few days as it happens – see here), should cause others to think urgently about how they manage big disclosure exercises.

None of this excuses the defects nor, if I read the judgment aright, has any attempt been made to justify what went wrong beyond the incontestable fact (which the judge observed for himself) that “disclosure in complex international construction projects is always difficult” and that “there must be some give and take between parties and their solicitors in relation to difficulties which inevitably arise in the course of the disclosure”.   Nor, of course, can one fault Pinsent Masons, solicitors for the defendants, for seeking reimbursement of costs which were duplicative or wasted.

It is worth considering what the outcome would have been on similar facts in the US. The party at fault would have automatically been accused of concealment, of bad faith and of the higher end of those endless gradations of negligence which American lawyers like to accuse each other of committing. They would do that because of their duty to their clients to paint the other side in the blackest colours in the hope of getting adverse inferences so darkly worded that settlement must ensue. Quite often, but perhaps less often than is thought, they will be successful, because that is the way the game is played in US courts. Quite often, indeed, that would be entirely justified, and would be justified in any jurisdiction. Sometimes, however, justice would be denied by such inferences because the defects owe nothing to bad faith and are irrelevant to the issues in the case.

There is no motive, in the UK, for alleging bad faith for what is, at worst, incompetence. Mistakes have been made and are admitted. There are arguments about the consequences in wasted costs (and you will see from the end of the judgment that not all the defects were treated alike in this regard). A figure is ordered or agreed and the case moves on. Ramsay J has form here – see Vector Investments v Williams where a successful claimant was awarded its costs of the action generally but the defendant won a £20,000 costs order because of discovery defects, that sum representing the additional costs incurred in dealing with the defects.

Rumblings reach me of firms scared witless by the West African Gas Pipeline judgment. I am not against that, particularly, if the result is an upgrade to the in-house skills set, the forging of relationships with one or more external service providers, and the development of a set of processes which the firm will adopt henceforth for undertaking eDisclosure, for delegating as appropriate, for QA, and for supervision.

Be clear, however, that if you have done all that, you are merely narrowing the potential for future error, not eliminating it. This is a high-pressure business, whether you are a law firm or a service provider, with complex processes having to be undertaken at high speed on large volumes of data which, all too often, is non-standard or possessed of characteristics which were not evident at the outset.

One cannot assume, in these benighted times, that everyone will recognise the quotation from St John’s Gospel at the top of this post. The old punishment for an adulterous woman was death by stoning, and ill-wishers hoped to trap Jesus into denying the law.  In a variant on his “judge not lest thee be judged” line, Jesus said that anyone who was himself sinless could throw the first stone. There were no volunteers.   Sin has been replaced by negligence, and forgiveness by professional indemnity insurance.  The test for those minded to heave a half-brick at anyone involved in this case is not whether they have ever fouled up an e-disclosure exercise, nor whether they have been caught doing so. It is whether they are at any risk that they might. We all live in glass houses in this respect and it would be prudent not to throw stones.

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