Ten years ago, I was one of those involved in drafting what became Disclosure Practice Direction 31B. At one level it was quite fun to have the opportunity to improve the practice of managing electronic documents for litigation. At another level it was something of a grind, of long evenings in a boardroom debating the principles and detailed wording, while trying to anticipate objections from practitioners and the Civil Procedure Rule Committee.
The CPRC in those days was a bit like a mixed ability class, with some of the brightest minds in the legal world and, um, some others. High intelligence and a lifetime in practice did not necessarily produce flexibility of thought, as we found when we were allowed to sit in on a CPRC session. I cherish (is that the right word?) the judge who listened to us talking about costs savings and then said “I always think we should be concentrating on the saving of costs”, as if the subject had never come up. The same one heard us going on about the importance of cooperation and court-led focus on what really mattered, and said “I usually send parties away and tell them to sort it out”. Others were right on it, but our impatience perhaps showed, and they left us outside during the next meeting, affecting surprise at finding us in the corridor some hours later.
One MoJ chap was as sharp as a tack; another contributed nothing except to say from time to time that his job was to make sure that no changes would result in any new burden on the Treasury. That was a salary which might have been better applied to the actual administration of justice.
Since then, we have had not only a decade to think about it all and to observe the practice, but a brand new, ground-up rebuild of the rules in the form of the Disclosure Pilot. Since it was launched (in certain courts) in January 2019, it has won both approval and criticism. I hope those who drafted it will be aware that any attempt to improve the rules will attract criticism from somebody, that the target is a moving one (not least in terms of the technology used both to create documents and to identify disclosable ones), and that the whole point of a pilot is to flush out issues and to find the weak spots – users are like water and will find holes, exceptions and by-passes in anything.
Judges too are of uneven quality; their judgments are not precedents in any formal sense, but they tend to be taken as such, and one rogue judgment can poison things for those who follow. For example, the judge who [Ed: I think we might perhaps remove the rest of this paragraph before publication].
Now we have had a review of the pilot resulting in recommendations to the Rule Committee. It is this which makes me write about the subject today, but I will refrain from adding my own commentary. Instead, I will merely point you to some sources in which the ground is already covered.
Start with an article by Nicola Gare at HFW called Proposals on reforms to the English disclosure pilot are announced which summarises the perceived problems and has links to the key documents needed to understand the proposed revisions.
An article first published in the New Law Journal headed A step (change) in the right direction? by Johnny Shearman of Signature Litigation, Tracey Stretton of Ankura and Mark Surguy of Weightmans, gives a good picture of the trends affecting the operation of the pilot and captures some of the thinking of those who are not happy with it.
A LinkedIn post of yesterday by Johnny Shearman reports this:
The amendments to the Disclosure Pilot Scheme have a green light.
The Civil Procedure Rule Committee has approved the amendments to the DPS put forward by the Disclosure Working Group.
The revisions were approved at the CPRC’s October meeting and they follow the announcement that the DPS will be extended through to the end of 2021.
The amendments will be included in the next available Practice Direction Update.
Following our feature article on the DPS in PLC Magazine earlier in this year, Graham Jackson and I are writing an article on the amendments which will appear in the December issue of PLC Magazine. We’ll make it available as soon as it’s been published.
What are your thoughts on the planned amendments? Do they go some way to alleviate the criticisms levelled at the Pilot to date?
These are just the most recent articles. Jonathan Maas recently assembled a collection of past articles by many hands (including mine a few times) which cover every aspect of the pilot, including the use of technology.