Georgina Squire of the London Litigation Solicitors Association has written a concise and practical guide to eDisclosure under the new rules, which has been published in the New Law Journal. It is called A brighter future? (not the first, I think, with that title on this subject, but the message is an important one) and it emphasises the need for early attention to scope, for discussions aimed at narrowing the arguments, and for focus on what really matters.
I don’t agree with all of it – the sentence The new disclosure rules are a significant departure from the previous approach of “leaving no stone unturned” ignores the fact that that expression comes from two cases (Digicel v Cable & Wireless citing Nichia v Argos) in which looking under every stone was expressly disapproved of. The new rules are not a “significant departure” from that approach but a reinforcement of it.
That apart, this is a good article, worth reading by those who are facing their first CMC since the rules came in.
Meanwhile, Richard Harrison of Laytons, one of the more thoughtful of the litigation lawyers who actually have to do this stuff, has set down his view of Precedent H and the context in which it is to be used. His article, on the SCL website, is called Cost Management and Budgeting: the Absurdities of Precedent H and has as its opening sub-heading The need for scepticism.
Comparisions between cost management and a construction project (something to which I plead guilty, if that is appropriate) fall down, Richard Harrison says, for various reasons. For one thing, “not many buildings are put up whilst trying to avoid the malign attentions of a wily demolition expert”. If the disputing parties could sit down to plan a case managing project, “there would be no need to litigate”. He goes on to comment, in uncomplimentary terms, on Precedent H and a process which may look just fine, to some at least, as set out in the rules but which takes no account of the real-life vagaries of litigation.
Richard says that he approaches litigation anyway with spreadsheet and draft numbers as a matter of course – as do many good litigation solicitors – but he now has “an expanded form costs estimation spreadsheet that is so detailed it is pointless”. The degree of detail was something much debated during the gestation of Precedent H – as with so many things, an attempt to meet a wide range of targets with a single form (or single rule, come to that) is far from easy. Nor does anyone suggest (anyone sensible, anyway) that it is easy to assemble costs projections so early in a procedural task so filled with variables and bear-traps as litigation is.
Richard Harrison ends with this:
Courts are woefully underequipped to understand the process which happens before everything arrives before them in neat bundles. They will be reduced to mechanistic and formulaic decisions driven by the culture of sanctions. The result will be higher risk, higher cost litigation. And no real benefit for clients.
I may be wrong, but I don’t see judges ignoring well-articulated arguments on this, as long as they rise above mere excuses for failure to try. If we do see the “mechanistic and formulaic decisions” which Richard prophesies, then clients, conscientious practitioners and Lord Justice Jackson himself will all have been badly let down. I await reports from the CMC trenches with interest.