Hunger Games

By | 5th April 2012

Set in post apocalyptic America now called Panem, Hunger Games is the first book in a trilogy by Suzanne Collins recently made into a film. The plot is complicated but a synopsis can be found in Wikipedia.

For present purposes, Panem consists of Capitol, a rich and powerful city and 12 districts under its firm control (a 13th was previously destroyed). Because of a previous rebellion against Capitol, the districts have to provide “tributes” each year to the Hunger Games. The games are televised live (with compulsory viewing) and the tributes are a boy and a girl from each district aged between 12 and 18 and there are therefore 24 teenagers who have to use their wits in the “Arena” to outwit the others. The winner is the one left alive at the end.

When I first heard about the stories I thought they were a mixture of Gladiator and Rollerball. We all remember Russell Crowe trained to kill in the amphitheatre and I also recall a lethal game called Rollerball involving James Caan where once again the idea was to kill or maim your opponents.

There are also echoes of Sparta, the dominant city state in Ancient Greece where the majority of the population were slaves who could be killed each autumn by Spartan citizens without fear of retribution.

Contentious lawyers will be familiar with the scenario where the tactics are dominated by an approach to scorched earth which would make any self respecting fire eating dragon look puny. E-disclosure is often viewed as the problem here and not the solution, and has even been called “a weapon of mass disclosure” in the past. [See Weapons of Mass Discovery, 25th January, 2010]

Encouragingly, what current cases appear to show (see recent posts over the past few weeks) is that this kind of strategy will not succeed in most cases, all the more so since there is a growing recognition that “cooperation” is the name of the game. As a colleague said to me recently, “It is very difficult to get litigation lawyers to understand the duty to cooperate in the process of the parties trying to kill each other, as in a duel where the seconds (lawyers) have to agree upon a choice of weapons.” Equally, we need to remember that CMC stands for Case Management Conference (my emphasis), and what is more, a conference on how the case is to proceed and the parties need to attend to help the court in this exercise. The CPR’s overriding objective to cooperate and confer and help the court is often overlooked, and I sense that the courts are gradually becoming keener on their case management powers than has been the case in the past.

In an example of what I mean, the Equity Court in New South Wales has just published a new Practice Direction on disclosure. It is a model of brevity such that I reproduce the whole PD here:

Disclosure in the Equity Division


  1. This Practice Note was issued on [date of issue] and commenced on [date of commencement].


  1. This Practice Note applies to all new and existing proceedings in the Equity Division, except in the Commercial Arbitration List.


  1. This Practice Note is for the guidance of practitioners in preparing cases for hearing in the Equity Division with the aim of achieving the just, quick and cheap resolution of the real issues in dispute in the proceedings.


  1. The Court will not make an order for disclosure of documents (disclosure) until the parties to the proceedings have served their evidence.
  1. There will be no order for disclosure in any proceedings in the Equity Division unless it is necessary for the resolution of the real issues in dispute in the proceedings.
  1. Any application for an order for disclosure, consensual or otherwise, must be supported by an affidavit setting out;
      • the reason why disclosure is necessary for the resolution of the real issues in dispute in the proceedings;
      • the classes of documents in respect of which disclosure is sought; and
      • the likely cost of such disclosure.


  1. The Court may impose a limit on the amount of recoverable costs in respect of disclosure.

What is interesting is that there is to be no order for disclosure until the parties have disclosed their evidence and no disclosure at all unless it is essential to resolve the dispute before the court. If the parties want disclosure they have to apply to the court by affidavit setting out why they want disclosure, what documents are required and the cost of obtaining them. The court may also impose a limit on the amount of costs recoverable in respect of disclosure.

I am a fan of the Jackson reforms as applied to disclosure but this simple seven paragraph practice direction says it all. Doubtless there will be those who will say that I am and it is far too simplistic but what a wonderful starting point in an attempt to keep the costs of disclosure to the minimum necessary for “achieving the just, quick and cheap resolution of the real issues in dispute in the proceedings” in the words of paragraph 3.

Whatever your view, it seems clear to me that efforts are being made all around the world to reduce the cost of disclosure/discovery and to ensure that parties assist the court to do so. That is good for clients and I believe for all concerned in the litigation process, including lawyers and vendors too.

Not exactly Hunger Games (or Rollerball, or Gladiator or Ancient Greece) but an interesting trend nonetheless.