You may have noticed that my written output has slowed down a little recently. Before somebody writes in to ask why (they do, you know) it may be worth giving a few lines of explanation. Put briefly, UK procedural developments have hogged the limelight, whilst conference events, big issues like privacy, and the daily flow of press releases keep on coming. Those of us who are interested, in whatever capacity, in developments in electronic disclosure / eDiscovery, in case management, in information governance and in data privacy can hardly complain.
The big subject in the UK at the moment is the fall-out from the Court of Appeal’s judgment in Mitchell v NGN (case report here). Whilst this may appear to be a narrow point to do with a defined penalty for a specific failure, the Court of Appeal took the opportunity to send out much broader messages about the court’s policy on default.
The result has been a flood of articles and opinions, the majority of which have attacked the judgment. There is plenty to attack, but the blunt fact is that we are where we are. We can criticise the policy direction, but there are cases in hand, case management conferences coming up, and decisions to be made in the climate as we find it.
Trying to write about all this requires a degree of focus and concentration which is quite hard to find as articles by others fly in and as we hear of the first of the post-Mitchell judgments. On the whole, I write for the future and not for tomorrow, and I would rather take my time over my article (articles, as I think it will be, one on the context and one with some practical suggestions relating to electronic disclosure).
If you want to start catching up with what is being said, turn to a list of relevant articles made on his excellent Civil Litigation Brief by barrister Gordon Exall. There is some good stuff in there, but some inevitable repetition between the many contributors to the discussion. There must be a text analysis app which could identify unique points and produce a summary.
There has been much activity on the subject on Twitter, a place where we can be reasonably sure that we are not being eavesdropped by Lords Justices of Appeal – not that this would be a bad thing, perhaps. One evening, we got on to alternatives to the Civil Justice system, including various forms of private dispute resolution. My suggestion was to use the courts of Singapore or Dubai; there, procedure is still the means to an end rather than a kind of expensive game of snakes-and-ladders as it seems to have become here, and “technology” means back office systems and (in Dubai’s case) smartphones. Here, the MoJ and HMCS civil servants remain quite literally “paper-shuffllers” and “pen-pushers”.
As we discussed these alternatives, the law lecturer among us rightly lamented the loss of precedent, while the rest of us wondered if clients really care about that. They just want a result, not a procedural minefield in which the rules drive them faster and faster while the system bogs them down in waiting lists and paperwork. Neither the enforced speed nor the roadblocks is generally the fault of the case managing judges, the PBI (Poor Bloody Infantry – an expression from the Great War) of the system.
Soaking up the post-Mitchell fall-out is not the only distraction. I have done the last of the year’s events. There are several to write up, because they followed each other too closely to allow time to report on them up as they happened whilst preparing for the next one. Next year’s conferences are getting close enough to require planning calls, the booking of flights and hotels and all the other things which can take up much more time than the events themselves.
Meanwhile, there is a continual flow of developments, appointments, webinars etc from my sponsors, as well as discussion on other fronts – privacy developments around the world, the proposed new changes to the US Federal Rules of Civil Procedure and the rest.
Fortunately, the world is winding down for Christmas and there will be ample opportunity to catch up with all these things.