Two preceding articles have considered the implications of the Mitchell judgment, one in general terms and one more specifically, with a look at alternative approaches which we might see from the courts.
This third post looks at what the disclosure obligations actually are by reference to rules and cases – not a rule-by-rule analysis, but pointers to sources whose primary focus is on properly reducing disclosure or on the level of competence expected of lawyers (and judges, perhaps). There is probably room for a fourth post concentrating on what might be done to avoid getting into the position where deadlines might be missed. You have had enough words on this for now (and if you have not, I certainly have) so I will do this bit in the shortest form possible.
There is only so much value in squealing that the sky is about to fall in. Let us accept that strict enforcement of compliance with the rules is a fixed policy of the senior judiciary; what is needed is a is a cool analysis of what is required to avoid the kind of conduct which gives rise to sanctions in the first place. Consistent with my general approach, I try to look at it in more positive ways than merely “How do you avoid breaches?” – that defensive benefit is a by-product of getting it right. “Getting it right” in disclosure terms includes producing the minimum consistent with the duty to court and client – the court calls it “proportionality”; the client calls it “value”.
Rules and cases
Do read the bloody rules – not just those added in 2013 but those which preceded them and which are still in force. Between them, they offer a code which, properly used, allows you to limit the scope of your own disclosure and to enforce limits on the disclosure of your opponents. “Allows” is actually the wrong word – these rules positively require you to reduce the scope of disclosure and require judges to police that with the “active management” which has been expected of them at least since 1999.
Specifically, begin at the overriding objective – the clue is in the name. Have a look at the court’s case management powers in Part 3 – it is a politeness to call them “powers” because they are really duties. Whatever the Court of Appeal may have said in Mitchell, these duties are not merely to dispense sanctions for every trivial breach, but to move the case along, impose proportionality and do justice between the parties; they do, however, include, as I pointed out in my first article in this series, an obligation to spread the available resources between cases.
I am not, of course, inviting you to ignore what the Court of Appeal said in Mitchell. Look back at what was said in my second article in this series about Abercrombie and Aldington. Whilst these are chiefly relevant to what happens on a sanctions application, you may encourage the court’s generosity if you have complied as best you can, and in a way which is consistent with proportionality. That includes duties of openness and discussion with opponents.
[Note the caution with which I say that you “may encourage the court’s generosity”. In the present climate, you won’t catch me suggesting that anything will certainly help; so much for the hoped-for consistency]
As to disclosure itself, the sources are Part 31, Practice Direction 31A and, most importantly, Practice Direction 31B. Even before Jackson, the rules included, amongst other things, a provision (Rule 31.6) limiting disclosable documents to those which are supportive of or adverse to the case of the giver of any other party, and limitations of reasonableness on the scope of search. Reasonableness, like proportionality, involves weighing the value of a document or class of documents against the cost of retrieving them and against the risk that you may exclude documents which matter – “matter” meaning that they should be disclosed (after taking account of the limitations referred to above) and / or that they contain information which is important as evidence or for the factual narrative of the case.
I will not take you through the new provisions inserted by Jackson as the amended Rule 31.5, but do read them. They require you to be informed about potentially disclosable sources of information, to discuss (not just write letters about) the scope and the best way of managing the documents, and to present the information in a prescribed form to the court at the first case management conference. Here be dragons, as they used to say of old maps, in the form of deadlines – dates by which certain things must be done. Whilst Mitchell involved a specific breach, with its own prescribed sanction (though even that raised questions), the principles discussed in Mitchell probably apply to every deadline.
(The “probably” in there reminds us of a point touched on in my second article – not every default involves sanctions and invokes Rule 3.9; on the other hand, the effect of Mitchell may arguably make every breach potentially sanctionable. And when I say “arguably”…. Let me refer you again to Gordon Exall’s article Do you need to apply for relief from sanctions or an extension of time?).
Read some cases
The cases to read are not merely the post-Jackson, post-Mitchell cases specifically about sanctions – you can find all that you could want on this on Gordon Exall’s comprehensive, authoritative and well indexed Civil Litigation Brief – this is his Mitchell index.
The cases which matter for disclosure purposes are some old friends, which together make up a large of the case law authority relevant to the scope of disclosure and the manner of giving it. They are:
Digicel v Cable & Wireless  EWHC 2522 (Ch) (23 October 2008)
Although this applied to the old Practice Direction 31, the principles remain as before. Just read it, to see what happens to a party who fails to engage in the required discussions with opponents.
Earles v Barclays Bank Plc  EWHC 2500 (Mercantile) (08 October 2009)
This judgment, by HHJ Simon Brown QC, Mercantile Judge in Birmingham, attracted attention mainly because a successful defendant lost most of its costs for failure to follow the rules – it is “gross incompetence” not to know and follow the rules, the judge said. The case is important also, however, for its careful analysis of the English concepts of legal hold, for its emphasis on the importance of contemporaneous documents as evidence, and on the obligations of parties, particularly those whose business will inevitably involve litigation, to have the systems and procedures in place to deal with them.
Goodale & Ors v The Ministry of Justice & Ors  EWHC B41 (QB) (05 November 2009)
This judgment stands alone in that it addresses disclosure pre-emptively rather than in retrospect. Senior Master Whitaker banged heads together, requiring the parties to focus on what really mattered and reaching the conclusion that a limitation to four custodians would be enough at least to begin with. Master Whitaker also drew attention to the use of technology to reduce the pile for review, something emphasised also by Lord Justice Jackson in his first report.
Vector Investments v Williams  EWHC 3601 (TCC) (05 November 2009)
Here, a party who was successful and was awarded its costs accordingly, was then penalised in the sum of £20,000 for the manner in which it had given disclosure. It is a useful case to raise against an opponent who runs up unnecessary expense for you because of its own sloppy conduct.
Shah & Anor v HSBC Private Bank (UK) Ltd  EWCA Civ 1154 (13 October 2011)
If you are in any doubt as to the meaning of Rule 31.6 and the limitation of disclosure to documents which are supportive or adverse to the case of the giver or any party, read this mildly entertaining judgment. The use of the word “relevant” is fine, said the Court of Appeal, down to the point when the inclusion or exclusion of documents really matters. Then the precise wording of Rule 31.6 and, specifically, the word “only”, matters very much.
Al-Sweady & Ors, R (on the application of) v Secretary of State for the Defence  EWHC 2387 (Admin) (02 October 2009)
Even before Jackson and Mitchell, there were three good reasons for not fouling up your disclosure obligations – adverse publicity, indemnity costs and losing the case. The Ministry of Defence achieved a remarkable treble in this case. Read it either as a salutary warning, or as encouragement to attack legitimately those whose disclosure is patently inadequate.
One new case rounds off this selection:
Atrium Training Services Ltd & Connor Williams Ltd, Re  EWHC 1562 (Ch) (07 June 2013)
It is possible, as I suggested in my second article in this series, that the comforting conclusion in Re Atrium goes by the board following Mitchell.
It was argued that the defendants’ disclosure was inadequate and therefore not in compliance with an Unless order. That, argued the claimants, meant that they were automatically struck out on the date of the expiry of the Unless order, an argument which introduces a subjective and qualitative element into the black / white question about deadlines. The defendant successfully argued that, whilst they accepted that their disclosure was indeed defective, they had done their best, and had been open and honest about the defects, and that no harm had been done. Has Mitchell removed that line of defence? If so, then any applicant who can make good an accusation of deficient disclosure is on to a winner.
If nothing else, this case reminds us of what ought to be obvious anyway – any decision-making about the scope or method of disclosure needs a) to be documented and b) to be discussed as openly as possible with opponents.
As I have already suggested, cooperation may be hard to find, at least where an opponent senses that you are on the back foot. Barrister Damian Murphy, who has recently set up Indicium Chambers to specialise in eDisclosure, says this in his article A Chill Wind Blowing:
anyone involved in disclosure will have to prepare for winter in the sense that they have to assume that the penalty for missed deadlines will be very severe and that levels of cooperation from the other side in the event of such failures will correspondingly shrivel. Where the penalty is so severe that means increased watchfulness and increased precision in all aspects of the planning and implementation of the disclosure process.
This can easily be dealt with by pointing you to a post-Mitchell article by that same HHJ Simon Brown QC who gave the judgment in Earles v Barclays. It is on the New Law Journal site and is called The Fall. Below the article are links to previous articles in the series.
No one would suggest that any of this is easy. The article, however, reduces the parties’ duties to easily-understood steps.
The use of technology
This is a technology-driven website, funded by the sponsorship of companies who sell technology solutions. I do not need that motive, however, to make the strong suggestion that disputes lawyers ought to be aware of the technology solutions which exist to deal with the large volumes of electronic documents in the manner referred to by Master Whitaker in Goodale. There is no one technology which is right for every case; it is incumbent on lawyers to know what solutions exist, what they cost, what they do and what they can save.
One can push this as a purely defensive suggestion; I am more interested in promoting the idea that benefits accrue to lawyers who understand how to bring the right tools to bear on a problem which must be quantified and budgeted at a very early stage in the proceedings – not just because the rules now require that, but because clients are entitled to expect it, and are more likely to instruct a firm which is good at it.
Tools and techniques
The eDisclosure Practice Direction 31B refers to the “tools and techniques” to be used to achieve proportionate disclosure. This predates the more specific requirement in the new CPR 31.5 that parties and the court consider how disclosure be achieved, and makes sense anyway in a rules framework which requires cooperation based on shared information. Each party has an interest in how the other side achieves its final selection for disclosure, and the methods of achieving that are as relevant as the criteria used to refine the selection.
That interest extends to protecting oneself from attack for breach of the rules and / or order – agreeing the approach will not help you if you then fail to adhere to the agreement, but this is the opportunity to decide on, and then argue for, the approach which is both proportionate and achievable in practice. It is also the opportunity to agree realistic timescales before the judge (whose experience of project managing eDisclosure exercises will be limited) decides to impose his own idea.
The word “techniques” connotes more than technology, and extends to all the other factors which may affect what is disclosed and what the costs are likely to be. That includes consideration as to who does the work – it may be best if the solicitors (or, indeed, the clients) keep part of the work in-house, but it is also necessary to consider whether a contractor – a technology supplier or a provider of managed review services – can perform the task at a lower rate without compromising on the quality.
A case does not need to be subject to cost management for such considerations to be relevant – Rule 31.5 requires an estimate of the “broad range of costs” which may be incurred for all cases, whether subject to cost management or not, and the different ways of skinning the rabbit are as important as questions of scope.
New skills required
Is all this easy? Of course it is not. It requires a range of skills which include, but go well beyond, the old-fashioned legal analysis required when our tests were the relatively simple ones of relevance or privilege. The skills now include project management, budgets and the understanding of technology. Those who do not get this are the most likely candidates for a Mitchell battering.