A press release from Taylor Wessing reports that Master Matthews has given judicial approval for the use of predictive coding for disclosure in the English High Court.
The press release reports that the parties had agreed the use of predictive coding but thought they ought to obtain judicial approval. This is consistent with the provisions of Rule 31.5 which provides (effectively) that the court is the final arbiter of decisions about scope, method and cost of disclosure.
The press release emphasises that the concern of both court and parties was “to reduce the associated costs whilst still complying with the disclosure obligations”.
The Master “noted that predictive coding is in use in other jurisdictions and evidence suggests that it is no less accurate than a traditional manual review process”. I think it likely that US Magistrate Judge Peck’s opinions in Da Silva Moore and Rio Tinto will have been referred to. I think it likely to say that the judgment will have referred to the Irish case of Irish Bank Resolution Corporation Ltd V Quinn – I wrote about Rio Tinto and Quinn in my article here.
The first (and I think hitherto the only) reference to technology of this kind, albeit not by name, came in former Senior Master Whitaker’s judgment in Goodale v The Ministry of Justice. That judgment includes the sentence:
“Indeed, when it comes to review, I am aware of software that will effectively score each document as to its likely relevance and which will enable the prioritisation of categories within the entire document set”.
Why, one wonders, has it taken so long for this to come before the court in the direct way of the present judgment?
Having dictated this much, I now have a copy of the judgment which, on a quick glance, bears out my assumptions above. I will write more about it shortly. I am obliged to Ed Spencer, the Associate at Taylor Wessing who is referred to with particular thanks in the judgment, for letting me see it.
The case is Pyrrho Investments Ltd & Anor v MWB Property Ltd & Ors and a copy of the judgment is attached.