Two peas in a pod

By | 30th August 2012

It used to be said that the UK and America were two peoples separated by a common language. Apart from the obvious “Tomahto”, “Tomaydo” which is really only a difference in pronunciation, we are all familiar with the American “line” instead of “queue” or the “trunk” of the car instead of the British “boot.” Numerous other examples abound!

This relatively inconsequential observation came to mind as I read the article by Kate Paslin entitled Show Me the Money – Proposed Rule Changes Take on the Spiralling Costs of Discovery. [eDiscovery Insight, 21st August, 2012]

Kate compares the recent (soon to be in force) changes in the rules in England and Wales with the current approach in the US to issues relating to discovery/disclosure. Her premise is that the costs management changes in this jurisdiction may define the trends in this field for the whole of 2013.

For us Brits, fresh from Olympic success, the buzz word is proportionality. She calls it our “P” word and refers to the Jackson inspired changes to costs management to be found in the new CPR rule 44.4(5).

From the US perspective, she believes their “P” word is “preservation” and refers to the burdens imposed on lawyers in the US to advise their clients what to keep and what to throw away.

She concludes:

“Whether a fan of proportionality or preservation, Brit or American, what may be most useful to all involved are the similarities between each region’s attempt at providing cost management. Proportionality is, after all, just a means to provide litigants with what they need – and only what they need – to ensure fair (affordable) access to the justice system. Preservation rules, conversely, attempt to provide the same unfettered access to justice, balancing parties’ ability to discover what they need against the threat of penalties for denying the other party the same courtesy. But although the two approaches show some convergence in terms of overarching goals and similar factors for determining the reasonable amount and distribution of expenses, they also each maintain a unique emphasis that will undoubtedly effect the success or failure of any proposed revisions. Either way, stay tuned for some significant cost management changes that may just be the defining trend for 2013.”

We may not be two peas in a pod but there are more similarities in our two systems than many believe. Our different approaches to achieving the goal of cheaper, quicker and more cost effective litigation on both sides of the Atlantic are fascinating to watch.

Photo credit: Free Extras Images: Peas Vegetable Pictures