See Naples and dine

By | 6th March 2012

Charles Holloway wonders whether offering the “key to the warehouse” promises a better choice of menu when it comes to reducing the costs of civil litigation.

Some time ago, I recall having a somewhat unedifying row with a waiter at a restaurant in Naples, Italy as the Americans would say (presumably so as not to confuse it with Naples, Florida)! There were a lot of things wrong with that particular restaurant ranging from the unavailability of many items on the menu to the rudeness of the staff such that I became embroiled in an argument about the service charge element of the bill when I refused to pay it. This should not have come as any surprise to the waiter as I had complained about aspects of the food or the lack of it and the complete lack of anything approaching acceptable service as the meal progressed. Nonetheless, it appeared to come as much as a surprise to him as snow in the tropics.

One of the worst elements of this much hyped restaurant was the refusal of the staff upon request to provide a copy of the menu both for my wife and for me, at a time when there were fewer than a dozen other diners in a room designed and laid for upwards of 120 people! Apparently there was a shortage of menus (despite the fact that they were plainly visible piled up at the side of the room) and we were told we should make do with one between us! An inauspicious start, sadly confirmed as the meal progressed.

This incident came to mind as a result of a report that the so called Jackson menu options for disclosure are not now expected to be implemented until April 2013. Previously it had been understood that although the timetable was ambitious, implementation would take place in October 2012 or shortly thereafter.

By way of reminder, these rule changes do not require Parliamentary approval but are being introduced as part of the big bang of Cost Review reforms suggested by Jackson. In his seventh lecture on the implementation of his reforms,   Controlling the costs of disclosure, Jackson has published the complete text of the new rule dealing with disclosure and introducing his menu of options. It is proposed that the new rule 31.5 will apply to all multi-track cases but not to personal injury or clinical negligence actions.

Many law firms have already commented on the proposed changes but the one which I feel is the most interesting is the so called “key to the warehouse” option. When implemented, the court will be able to order under rule 31.5 (4) (f) that the parties should hand over the key to the warehouse after removing all privileged material, thus placing the burden on the party to whom disclosure is made to choose the documents they wish to use. Jackson says that this means that the parties will devote their resources to deciding which documents disclosed to them are in fact helpful. This is said to be the complete opposite of standard disclosure where each party expends time and expense in examining its own documents and, in effect, choosing the ones it thinks will help its opponent.

We shall see whether this has the effect of reducing costs, but it is one sign of the radical approach adopted by Jackson to the whole area of reducing the costs of civil litigation.

I suppose you might say that, at the very least, litigants will be able to choose from a menu, a choice inexplicably denied to me in Naples all those years ago. Progress indeed!