Vince Neicho and I served together on Senior Master Whitaker’s working party which produced Practice Direction 31B and the Electronic Documents Questionnaire. Vince was then the long-serving Litigation Support Manager at Allen & Overy and is now Vice President, Legal Services at Integreon. No-one brings more experience and understanding to the importance of the rules in managing disclosure than Vince does.
Last week I gave my first talk on the proposed new disclosure rule produced by a working party led by Lady Justice Gloster. Vince Neicho is ahead of me with a considered article about the proposals which you will find here on Legal IT Insider.
Vince’s article is headed Proposed disclosure change: much ado about something? It is perhaps not surprising after our many years of working together on the subject that our opinions are broadly the same. That question mark at the end of his title neatly encapsulates my own view. Much ado about…what, exactly?
Some good ideas but what enforcement? And training?
That view, put as briefly as possible, is that there is some good in the proposed new rule but that it is only needed because nobody, judges included, took any notice of the existing rules. The new working group’s introduction to its draft begins by saying “Neither the profession, nor the judiciary, has adequately utilised the wide range of alternatives under CPR 31.5(7)”. My predictions for 2018, just submitted to Computers & Law, include the possibility that judges will now hastily and belatedly start enforcing the existing rules if only because of the fear that Lady Justice Gloster “will otherwise put her head round the door and administer chastisement”.
We can have any number of new rules, but they mean nothing if judges do not enforce compliance. As Vince Neicho observes, for that they need training.
For now I merely point you to Vince Neicho’s very good article and will come back to it, and the rule itself, in January. Christmas is a time to be wary of excess, and two articles on one subject will induce torpor on a subject which is worthy of attention.
Competition from other jurisdictions
If I would pick one point from Vince’s article which is worth mulling over, it is his suggestion that the completeness of our disclosure process is one of the attractions which brings foreign litigants to our courts. Disclosure can be “complete” without being excessive, and the test of the new rule will lie in whether it tames excessive disclosure while adequately protecting against what American discovery calls “hiding the ball”. As you may be able to tell, my view is that we could have done that with a kick at judicial bottoms rather than with the burden of a whole new rule.
In the threatening parlance of the times, “Nice civil justice system you’ve got there. Pity if something were to happen to it”. Our Ministry of Justice runs down the civil justice system while mouthing empty rhetoric about facing competition from abroad, at a time when Frankfurt (mentioned by Vince) and other jurisdictions actively tout for disputes work (I have been writing cynically about this since 2011 – see my UK Government bids for a world-class legal reputation whilst neglecting the basics back home).
Could do better
Too many of our judges show evident distaste for rolling up their sleeves on an activity which, as barristers, they sneeringly saw as hack solicitors’ work. Too many practitioners (by no means all) have their own reasons for not wanting to diminish the review pile, despite ample scope for doing so within the existing rules. Clients whine about the costs of litigation (and blame the law and the lawyers) without considering whether the source of the problem is their own failure to manage their data properly. A new rule, however good, is mere sticking plaster on this self-inflicted wound.
Don’t wait for the new rule
In a recent article on the launch of OUP’s new book Electronic Disclosure Law and Practice by Michael Wheater and Charles Raffin of Hardwicke, I drew attention first to the fact that there is a long way to go before any new rule takes effect, and secondly that most judicial criticism (from those judges who stir themselves to focus on the subject at all), has concerned the practice of managing disclosure, and not merely the rules. In the latter, as Vince Neicho points out, “the changes may not be as radical as they first appear”. It would be a mistake to defer focusing on this subject until the final form of the new rule takes effect.
I will be publishing various resources (including, I hope, some videos) on the existing rules as well as the new one. In addition to producing Michael Wheater and Charles Raffin’s book, Hardwicke is running a series of seminars on disclosure, starting on 18 January – contact firstname.lastname@example.org for more information. I am sure that various eDisclosure providers, including Integreon with Vince Neicho, will be keen to explain what their software and services can do to help – what lawyer can properly articulate a proportionate proposal for disclosure if they don’t know what technology and services exist to achieve it?
Striking out under CPR 3.4
I will leave the last word with Professor Dominic Regan, learned and articulate exponent of civil procedure rules, who reacted thus on Twitter to Vince Neicho’s article:
Rule 31.4(1)(c) provides that the court may strike out a statement of case if it finds “that there has been a failure to comply with a rule, practice direction or court order.” There is no need to wait for a new rule. I am far from urging a return to the dark days of Mitchell when, thanks to a particularly stupid judgment of the Court of Appeal, judges were striking out cases for minor technical defects; I am also no enthusiast for threat and fear as a weapon of persuasion. The rule exists, however, and for good reason. We have seen cases struck out for disclosure defects without consideration of the merits (Eaglesham is an example).
Be ready for the new disclosure rule. But don’t wait for it before brushing up on your disclosure skills.