To say, as I did in a recent article, that that “civil justice in the UK has plunged off a cliff” is not the same as saying that civil disputes are in decline. Litigation lawyers, at least at the mid- to high level, seem to be busy enough, as do most of the London-based eDisclosure providers. The Jackson Reforms, now a year old, have positively generated work for some, although much of the focus has been more on procedural matters than on evidence and issues. Part of this, conveniently labelled “Mitchell”, has been negative, the opposite of the “justice” which the overriding objective requires; part of it, and particularly the eDisclosure aspects, reflect the attention which the rules now require on the sources, the methods and the costs of disclosure. One can deprecate the Mitchell aspects whilst thinking it right that parties are being required to pay early attention to the evidence and to the prospective costs.
Whilst in the US recently, on a tour which embraced both eDiscovery events and a short holiday, I wrote an angry article (“blistering” was amongst the comments I received) on the state of British civil justice. If that seems an odd way to spend a holiday, well, the times are odd and it annoyed me. Better out than in as they say, so I wrote to get it off my chest. The article was headed The Jackson consultation responses pull no punches but Grayling and the MoJ will ignore them.
The article had three targets – a Lord Chancellor who seems ignorant of the basic concepts of justice, a Ministry of Justice staffed by people whom I described as “standard issue overpaid time-servers and… academics who have failed to hack it in the strenuous world of university life”, and senior judges whose understanding of the practicalities of business life is defined by their lifetime experience of working for very big firms, on very big cases, for very rich clients.
I referred to one or two of the responses to the Civil Justice Council’s consultation, mainly to show that my observations were derived from the daily experience of those who have to deal with the consequences of these things. I was at pains to draw attention to differences (identified in some responses) between Lord Justice Jackson’s original recommendations and the position in which we now find ourselves. Quite apart from the fact that he had nothing to do with (for example) the reduction in legal aid, Lord Justice Jackson specifically recommended investment in court systems; whilst he was keen to encourage compliance with the rules, it was no part of his plan that we should have the climate of fear and uncertainty which derives from Mitchell.
My dismay was fuelled during the writing of the article by the resignation of Senior Master Whitaker, one of the few case-managing judges who actually understood how the rules should be used in support of a proportionate and efficient response. That is a subject I will come back to.
One needs to keep a cool head here. Whatever the present state of play, and whatever might be coming next, those who are charged with the conduct of litigation must get on with it using the rules as they stand. My main area of interest, obviously, is electronic disclosure and there is plenty in the rules, both as they stood before Jackson and as Jackson refined them, which is useful to able lawyers; there are obvious practical steps which should be taken by any competent lawyer, whatever refinement has been made to civil procedure this week. You do not need the fear of Mitchell-type sanctions to see the strategic and tactical benefit (to say nothing of the client-getting potential) of being skilled at acquiring information about your disclosure sources promptly and at proportionate cost, and at knowing enough about your obligations and about the range of tools and services which are available to aid compliance with the rules.
The purpose of this article is to pull together some of the developments and articles which have appeared since my own rather cross critique of the system. That was only a few days ago, but much has come out since then; it is hard to keep up and I do you better service by bringing some of it to your attention rather than inventing my own. What follows comes in no particular order of either time or importance. That yesterday was the first anniversary of the Jackson Reforms is a coincidence, and the sources referred to here do not include any of the “Jackson One year On” articles published this week; Gordon Exall’s Civil Litigation Brief lists the best of them here.
Paul Marshall: Of the murder of cabin boys
Solicitor Kerry Underwood is one of the fiercest critics of the post-Jackson, post-Mitchell regime. You do not have to accept his broader (almost political) position to get value from an articulate commentator whose daily experience – of simple things like trying to get a court to answer the phone, of rules, procedure and judges, and on into wider concepts of justice – fuels his distaste for the way things now are.
Kerry Underwood looks almost moderate when you read Paul Marshall’s article in Counsel Magazine is called Of the murder of cabin boys, a title which derives from an imbalance between offence and punishment. Justice is not just an airy-fairy ideal but relates to the rights of a person or company to be heard and to be dealt with fairly by the system. There is an inherent tension between the obligations in the overriding objective and the harshness of Rule 3.9, at least as it has played out in and after Mitchell. The tension appeals in its starkest form in the judgment of Mr Justice Andrew Smith in Associated Electrical Industries Limited v Alstom UK  EWHC 430 (Comm), 24 February 2014 where the judge (who had been criticised in Mitchell) felt himself obliged to reach what he himself described as an unjust conclusion.
This tension appears in practical form where lawyers may find that an apparent duty to take every point in the hope that their opponent may be “Mitchelled” conflicts with their duty to cooperate. Cooperation is both an express duty imposed by the rules and a practical way of oiling the wheels to keep the management of a case on track, and it is a (presumably) unintended consequence of Mitchell that lawyers see opportunities to blow their opponents out of the water on technical and procedural grounds. It will take time to draw conclusions from the conflicting cases which are tumbling out every week.
The most immediate victim of the change appears to Paul Marshall to be judicial discretion. In one of my slides, I say of this discretion that “If the judge can make any order, then you can seek any order”. Lord Justice Jackson’s new Rule 31.5 appears on its face to give ample opportunity to those who do understand these things in relation to disclosure. Whilst the new sanctions regime may well benefit the competent (perhaps at the expense of the incompetent) it also introduces an arbitrary element which benefits no one and does nothing to reduce costs while making it very difficult to give proper advice to clients.
Gordon Exall: So CPR 3.9 has been made easier?
Gordon Exall is the unchallenged master of clear and timely explanations of procedure, and specifically procedure relating to default and sanctions. His Civil Litigation Brief should be on every litigator’s desktop at least once a day. His article So CPR 3.9 has been made easier? McTear could bring a tear to the eye is particularly helpful. The case which is its subject, McTear & Anor v Englehard & Ors  EWHC 722 (Ch) (14 March 2014), draws attention to the gap between Sir Rupert Jackson’s intentions and the reality, including as it does a recital by the judge of the earlier (many of them very recent) authorities which indicate how judges should react to alleged defaults apparently deserving sanctions.
The point, made both by the judge and by Gordon Exall, is that anyone facing or contemplating a Rule 3.9 application must read a lot of case law. Is this a case where the duty to the client requires you to take a compliance point in the hope of crippling your opponent? Or is it one where such an application would be criticised, as happened in Summit Navigation Ltd & Anor v Generali Romania Asigurare Reasigurare SA Ardaf SA & Anor  EWHC 398 (Comm) (21 February 2014)? In that case, it was the party taking the point who was criticised, rather than the one allegedly in default; the costs picked up by the aggressor was said to be £24,000.
The only message which matters here, in eDisclosure terms as in any other, is to make sure that you are the party in a position to take Mitchell points if you choose to, not the one who has to apply for relief.
Law Society Gazette: Buffer rule to relieve Mitchell pressure on courts
Several things came out of a conference organised by the Civil Justice Council to assess the impact of the Jackson reforms. One of them, reported by the Law Society Gazette’s Rachel Rothwell, is a so-called “buffer rule” to allow parties to agree extensions of time between themselves. The problem being addressed here is that parties are making pre-emptive applications for extensions of time in such numbers that the court is overwhelmed by them – the very opposite of the intentions behind the new fierceness which aimed to reduce applications. The point made above about discretion extends to common-sense extensions, not affecting the timetable, which allow the parties to devote resources to running the litigation rather than in making “just in case” applications.
Litigation Futures: Mitchell should make courts more cautious about attractions sanctions to orders, says judge
The focus on sanctions, on seeking to define what is a “trivial” breach, and what is a good excuse, must, sooner or later, drive us back to the terms of the underlying orders, and to the importance of drafting them to avoid unintended consequences. The court addressed this question in a case called Porter Capital –v- Zulfikar, reported by Litigation Futures here and by Gordon Exall here. The judge drew a careful distinction between sanctions required by the rules and those which lay within the court’s discretion. He referred amongst other things to prior defaults justifying a stringent order, and to applications predicated on an assumption that the Mitchell regime implied a “one strike and you’re out” culture. This takes us back to what I referred to above – the idea that the court has a discretion which parties can invoke as much by seeking sensible orders as by taking a proportionate approach to apparent default. None of this (of course) undoes the damage in Mitchell, but it does suggest that a nuanced and sensible approach may keep you within Mitchell.
Gordon Exall (again): Lord Justice Jackson’s response to the civil Justice Council
Lord Justice Jackson himself made a response to the Civil Justice Council which, amongst other things, draws attention to the gaps between his aspirations when drafting his report and the practice as it has developed. Here again, Gordon Exall gives us the best and shortest summary of the things we need to know. In case that is not clear already, I am a supporter of Lord Justice Jackson’s aims; where they have (so far) fallen short of his ambitions derives either from the MoJ’s failure to back them with court resources (but see below on this) and from the consequences of Mitchell.
Master of the Rolls: “fairly unrepentant” about Mitchell
Here’s an odd choice of words from the judge who delivered the Mitchell judgment and whose speech last April was its foundation. In a speech to the CJC event, the Master of the Rolls said that he was “fairly unrepentant” about what was said about compliance and sanctions in Mitchell. Some saw these words as signalling a climbdown. Perhaps not – I am “fairly unrepentant” about my criticisms of Mitchell and its inevitable aftermath and I intend no weakening of that by so describing it.
Millions promised to modernise courts
Never fear, help is at hand. Whilst every other policy tends towards the driving of litigants out of our courts, the government has announced plans to spend up to £75 million a year for five years to modernise the court system in England and Wales. The Legal Futures article about it is called Government unveils massive modernisation programme.
You will think me cynical, no doubt, but I do not believe a word of it – that is, even if the £75 million a year actually appears, I don’t expect much useful modernisation. We have had promises of such funding before and it has come to nothing; government departments generally manage to screw up any contract with an IT element; and the Ministry of Justice is simply not competent to deliver modernisation on the scale implied in the announcement. These are, after all, the people who entered into contracts with G4S and others which cost the earth, delivered an inferior service and allowed contractors to milk the system unchecked – G4S has just agreed to repay more than £108 million which it wrongfully extracted from just one MoJ contract without, apparently, anybody at the MoJ noticing. I predict ignominious failure.
Be one of the winners
So what are we left with? For every party who gets “Mitchelled” another emerges a winner, at least for that round. The trick, as I said above, is to be the one in a position to do the “Mitchelling” if it is appropriate to do so.
In eDisclosure terms, that means being able to comply with the provisions of Rule 31 and in particular the detailed provisions of Rule 31.5. You must, before the first Case Management Conference, be able to say what potentially disclosable documents you have, by what methods you propose to deal with them and what the estimated costs are of doing so, perhaps with variant suggestions.
The older rules and cases (I wrote about them here) give ample opportunity to argue for narrower disclosure, something which fits with the new regime of enforced proportionality and tightened budgets. The rules, at least as they are drafted, penalise those who fail to comply with them – it is hard to argue with the principle there, when breaches cause expense and delay which penalise the competent and the efficient. My Twitter timeline yesterday included complaints from a litigation partner about his opponent’s very late service of amendments, with the comment that litigators have perhaps brought the stricter parts of Jackson down on their own heads.
The express affirmation that court time is valuable, and that cases must be managed with regard to other cases, has been in the rules since 1999.
None of that justifies Mitchell and its consequences. Some of the judgments and the anecdotes which float around Twitter indicate that there are practitioners who might benefit from reading a few rules and cases; in some so-called Mitchell cases, the delay and the effect on the timetable would always have been punished severely; some lawyers are clearly well out of their depth and should probably take up conveyancing or probate. Beyond that, however, there are thousands of sensible and able lawyers who risk being wrong-footed by the unevenness of the judicial response as judges struggle to reconcile their sense of fairness and justice with the apparently unrelenting mandate hand down by the Court of Appeal.
It is clear also that many judges struggle with the project management role which the rules expect of them, not least in relation to budgets. The official line is that judges have been well trained to cope with this. That does not appear from some of the stories which come back from the trenches. The same is true of eDisclosure; it is all very well requiring judges to direct the methods of giving disclosure, and to assess the costs of doing so, but that is not a skill which comes naturally to many of them.
That places a high burden on the lawyers – where it belongs you might say. Judicial discretion may have taken a hammering in Mitchell, as Paul Marshall suggests in his cabin boy article, but it remains true, as I put it in my talks, that “if the court can make any order then you can seek any order”. The winners here will do more than comply with deadlines. They will know how to assess the scope of the potentially-disclosable sources; they will know enough about technology solutions to be able to propose one and to discuss with (and perhaps challenge) an opponent who has a different view or perhaps no informed view at all; they will know the rules well enough to argue for or against the inclusion of specific sources. Where their own resources fall short, they will know where to turn for help.
Those of us of a certain age can recall the year after the Woolf Reforms. The end of litigation was widely predicted. Some of what came out of that round of reform is not universally welcomed all these years later – many condemn pre-action protocols and witness statements, for example, as adding expense without concomitant benefit. I curse, almost daily, the witless decision to rename “discovery” as “disclosure” as if changing its name would somehow make it better.
Civil litigation continued however, offering remedies and justice to clients and good incomes to lawyers and, in due course, to eDisclosure providers. Mr Justice Ramsey said recently that it would take five years for the Jackson Reforms to bed down. The Master of the Rolls accepted last week that there will have be some more appeals before we arrive at a variant of Mitchell which (I paraphrase) imposes the requisite degree of discipline without also imposing unfairness and the very disproportionate costs which the reforms aimed to reduce.
Meanwhile, litigation goes on. There are prizes for those who can rise to the new environment and to those who offer supporting services to them. Announcing the Global Law Summit 2015, Grayling said:
‘I am determined to help UK law firms and lawyers succeed in the global race and develop the business opportunities created by their world class reputation”.
Most lawyers are not engaged in any “global race”. Those who are engaged in it will be aware that they and many of their clients have options when it comes to jurisdictions. Grayling understands only money, and will assume that throwing £75 million a year for civil servants to spray around will fix the problems which stand in the way of converting that “world-class reputation” into “business opportunities”. It requires more than that. A proper Lord Chancellor would be a start. A clean sweep at the top of the Ministry of Justice would make room for people of talent and the commercial awareness which is necessary to promote those “business opportunities”. Something more from the Master of the Rolls than being “fairly unrepentant” about Mitchell would remedy the defects of that judgment whilst leaving us with the benefits which Lord Justice Jackson envisaged.
There will be winners. Be one of them.
This post originally attributed the cabin boys article to Kerry Underwood. Thanks to Gordon Exall for drawing my attention to the error.