The cat’s out of the bag

By | 10th March 2010

The judgment in Gavin Goodale & Others v The Ministry of Justice & Others was delivered by the Senior Master, Master Whitaker, in November last year and is now available on BAILII []

Master Whitaker is well known as an advocate of proportionate e-disclosure in appropriate cases and also as a judge experienced in dealing with Group Litigation orders as in this case involving the Opiate Dependent Prisoners Litigation.

What makes this judgment of particular interest to those involved in the whole area of electronic disclosure is the fact that the Master saw fit to include in his judgement the ESI questionnaire which the Rule Committee decided recently to refer to another subcommittee.

As far as I am aware this is the first time the questionnaire has seen the light of day. From a personal point of view, having written about my partial disappointment at the contents of the Jackson Review [Motherhood and apple pie, 18 January 2010], I am delighted that we have been granted a preview of what the rules may look like when they are incorporated into the CPR as Lord Justice Jackson clearly intends they should. He made it clear that he was not going to make any recommendations in relation to this aspect of civil litigation because he endorsed what the members of the Rule Committee was doing. As his press conference on the day of the publication of his report was attended by not only the Master of the Rolls but also the Lord Chief Justice, we must assume that in due course the rules will be amended to take account of this questionnaire.

But, you may say, they are not in the Rules yet and I do not need to be bothered with them. Well, I am not so sure.

I have said before on many occasions that the rules as presently constituted provide a framework within which litigators and their clients must work and the sanctions are there for any failure to comply. As HHJ Simon Brown said in Earles v Barclays Bank , and I paraphrase, the rules are not voluntary. If you litigate in this country you must comply with them. It is gross incompetence not to.

Now we have the authority of the Senior Master that the ESI questionnaire can be used in case management, and used NOW! Practitioners do not have to wait for the changes in the Rules. There is now authority to this effect.

There is a very helpful summary for practitioners on the website of the Society for Computers & Law together with links to the Guidance notes and the Glossary prepared by the committee which produced the questionnaire which may also be downloaded. See Disclosure: The ESI Questionnaire’s Debut.

We will doubtless hear more about this subject as the months progress and we will certainly be coming back to it.

In the meantime, as part of our ongoing contribution to the education of lawyers who have to grapple with the problems of electronic disclosure and to the spirit of Jackson and the reduction in the cost of litigation, we will be publishing shortly our own guide to the questions which lawyers often ask in relation to e-disclosure, with our suggested answers and a detailed glossary of many of the commonest terms used in the field of e-disclosure.

Our recent offer of up to £10,000 worth of free processing was hugely popular and oversubscribed and has now ended well in advance of the published deadline for submission to us of possible cases for consideration. However, we intend to continue to look for ways in which we can help our clients and those who have not used our services before to keep the cost of litigation down as to which more in due course.