Too soon to say

By | 18th December 2013

“It is too soon to say.”

Attributed to the former Chinese Premier, Chou en Lai (or Zhou Enlai), this response was, probably erroneously, thought to have referred to the effect of the 1789 French Revolution! 

These days, it appears to be more widely accepted that the words referred to the street protests in France and other European countries in 1968 and that the context had been lost in translation. I don’t know whether that is right but the remark was made in either the late 1960s or early 1970s, and it makes more sense if the reference was to events a few years earlier rather than events almost 200 hundred years before, however deliciously cautious the remark may have been. In the time of Mao Tse Tung ( or Mao Zedong), it did not pay to be too outspoken in one’s views or too hurried in your judgment.

So, at the end of the year which has seen the introduction of the Jackson reforms into civil litigation, where are we now?

Necessarily, it is too early to say. There have been few reported cases and the evidence tends to be merely anecdotal.

When I was regularly engaged in litigation with a disclosure element (we called it discovery then) I was always concerned to understand the scope of the available evidence as early as possible. Whether that came from paper files, boxes in a warehouse or the chairman’s safe, it was essential to understand what we were dealing with and get an early insight into the strengths and weaknesses of the case we had to meet or make.

Disclosure is an expensive exercise and this is emphatically not because of the technology which now exists. Litigation has always been time consuming, stressful and labour intensive. What we have now is more evidence available, much of it electronic, which resides in different places and often in more of them than before. The good thing is that, once you know where it is, or in whose inbox the emails lie, there is a range of technology to assist in the retrieval, process, analysis and to some extent the review of the relevant material.

One of the most eye-catching of Jackson’s reforms is the concept that not only should an order for standard disclosure not be the default position but that there might be no disclosure at all! At the other end of the scale Jackson has preserved the Peruvian Guano train of enquiry disclosure for the right cases and provided it is proportionate and has introduced the “keys to the warehouse” approach whereby a party may say that the others can look at what they like, but at their expense.

It seems to me that, these innovations apart, the Jackson reforms inserted into the CPR only what was already good practice in well managed law firms and had been for some time.

My point is that the old rules contained a number of requirements regarding disclosure, cooperation with the other parties and consideration of the use of technology so as to bring about the Holy Grail expressed in the overriding objective, but that many of them, if not most, were either ignored by the parties and/or were not enforced by the courts. In other words, the rules were there but they were not applied with any rigour and the parties were free to agree that they would dispense with them and the courts, by and large, went along with that approach. It was the clients’ litigation, after all!

Now the era of case management by the courts has arrived, there is bound to be more emphasis on enforcement of the rules and we will see judges adopting a more forceful approach to breaches of the rules and a more “directive” approach to the process of guiding a piece of litigation to a conclusion.

Cost will clearly be an issue. It was always thus, but now we have a major emphasis on costs management and budgets as can be seen from the recent Court of Appeal decision in Andrew Mitchell MP v News Group Newspapers Limited. Controlling cost is vital and one of the ways to do so is to harness the best technology in the right way at the right time. This in turn leads to a consideration of where the necessary expert advice may be found and I predict that the well run law firm will already have a plan which includes where the people to turn to may be found. If they have not already done the exercise, they will need to do so very soon.

When handling large amounts of paper, we used to rely on a team of people whose task was to assemble, sort and review the paper documents. You just hoped the cleaners did not “tidy away” the carefully placed piles of papers y0u had already worked on or did not leave the windows open!

These days, that is not only impractical and far too expensive, it is just not sensible and almost certainly will not be proportionate in the vast majority of cases. So the need to have a team of experts becomes an imperative.

As an indication of the way these things develop, I have recently met Damian Murphy, a barrister who is leaving Enterprise Chambers to set up a specialist eDiscovery Chambers. Indicium Chambers will focus on e-disclosure and Damian is looking to be instructed as an expert on eDiscovery exercises in his own right and also by both solicitors’ firms and by other barristers. Whichever way it happens, Damian sees himself as part of the litigation team as an expert advising on matters related to e-disclosure.

I wish him well and I am sure he will prosper.

There are many technology providers in the marketplace and bringing one onto your team as soon as you can will be one of the smartest decisions a litigator can make in the coming months and years. If you treat them as a trusted adviser and share your thoughts and concerns with them from as early on in the case as you can, you will find that your strategic decisions and your tactics improve immeasurably. You will be able to map out and agree a strategy for disclosure which will ensure you are not one step behind the other parties when it comes to pre CMC discussions/meet and confer and that you have a plan to put forward positively to the judge about what you think should be done in your case.

There are a lot of things to think about in relation to Jackson and a lot of work which needs to be done, for example in advance of the CMC, and it is certainly too early to tell how matters will turn out. But my take is that lawyers will find the reforms will settle down and in due course they will be accepted by the majority of court users as a sensible step along the road to better run litigation.