Jackson launches costs management trial in Birmingham

May 29, 2009

Lord Justice Jackson went to Birmingham on Tuesday to encourage its litigation solicitors to take part in a costs management trial in the specialist courts. The details are interesting, but less so than the policy considerations which underlay Sir Rupert’s approach to the business sector – the Small and Medium Enterprises or SMEs – which is one of his (many) particular concerns. I went to hear him – my interest in the rules and the technology of e-disclosure is infinite, but it is servant to a wider interest in making litigation accessible. “Accessible” means that it is affordable to the clients and still profitable to the lawyers.

I gave up marking the key passages as Sir Rupert outlined the scope of this part of his investigation – it was all important. For those with short attention-spans, I will leap to the end and report that the upshot was that the majority of the assembled company were willing to support a voluntary trial during which judges in the Mercantile Court and the Technology & Construction Court would supplement their case management role by managing costs in tandem with (or, strictly, as part of) their close attention to the other aspects of bringing a case to trial. Not everyone supported the idea, but no-one opposed it. Sir Rupert’s gentle lucidity barely concealed the implication that if this approach did not work then something more drastic will be needed. If it does not work in Birmingham, it would not work anywhere. Read the rest of this entry »


Judge Facciola LegalTech messages are for UK as well as US lawyers

February 17, 2009

There was something almost surreal about the discovery that the LegalTech organisers had failed to record US Magistrate Judge John Facciola’s keynote speech, given that Facciola regularly delivers Opinions castigating parties either for faulty decisions about technology or for technological incompetence. Did someone decide “Nah. It’s only that Italian guy – let’s not bother” or did someone press the wrong button on the tape recorder? Whatever the cause, it is a pity. The speech, like many of John Facciola’s Opinions, should be compulsory listening for lawyers and judges, and as much on the UK side of the Atlantic as on his.

The speech was introduced by Neil Aresty of Legal Computer Solutions, Inc. Aresty made reference to the “Christmas Eve decision” in Covad Communications v Revonet. A paragraph from that decision will suffice to set the scene and to show why Judge Facciola strikes a chord in the UK. Speaking of an archaic form of document request which ignored the last 40 years of technological development, he said:

“While I have considered a similar provision in depth once before, I see no need to repeat that metaphysical exercise here because it is a waste of judicial resources to continue to split hairs on an issue that should disappear when lawyers start abiding by their obligations under the amended Federal Rules and talk to each other about the form of production. I would much prefer to carry out my duties in accordance with Rule 1, which provides that the rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” Read the rest of this entry »


Companies in dark over litigation costs

November 10, 2008

Companies in dark over litigation costs is the title of an article on the Financial Times web site today (login required). It tells of an Ipsos Mori survey commissioned by Addleshaw Goddard.

The survey’s subject-matter was more specific than the title implies. The state of unawareness refers not to the costs themselves but to the litigation funding tools available to help, such as after the event insurance.

76% identified costs as their top concern (what bothered the rest, one wonders?) but only 10% seemed to know about the possibility of third party funding and only 2% had actually used it. Read the rest of this entry »


Jackson and CJC focus on costs models

November 10, 2008

Lord Justice Jackson’s review of litigation costs will presumably cover a wide range of subjects from rules and procedures, to the actual practice in the courts, to the better use of technology, to training matters and beyond.

One of the most important and complex areas will be the various ways by which litigation is funded – contingency fees, costs-capping, and costs-shifting all have policy implications beyond the specifics of the actual arrangements made with parties. An interesting development is after-the-event insurance which is attracting interest and which raises issues of its own.

An article on the Lawyer web site this morning Jackson LJ drafted in to investigate litigation costs 10 years after Woolf mainly concerns this aspect, reporting that Lord Justice Jackson has already been to see Bob Musgrove, Chief Executive of the Civil Justice Council. The CJC has a strong focus on the subject, with a report on the contingency fees model due out shortly.

The Lawyer article includes a summary of other reviews and studies on the broad topic of litigation fees and costs.

My thanks to Jonathan Maas of DLA Piper UK LLP for drawing my attention to this article within two hours of its publication. It is extremely helpful to be tipped off about wider sources.

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Pay-per-use EnCase for in-house e-disclosure

September 2, 2008

A new pricing model announced by Guidance Software allows companies to use its EnCase® eDiscovery on a pay-per-use basis. Hitherto, EnCase® eDiscovery has been available to end-users only by outright purchase. The new structure gives them the option of paying only for what they use, with no up-front licence fees.

The charges are tied to the amount of data searched, collected, processed and put into load files. The monthly invoices break down the usage by matter, which should make it straightforward to recharge the costs internally or to insurers.

Outright purchase of a perpetual licence remains an option for those with the throughput to justify capital budget monies. For those who opt for the new pricing method, the usage rates decrease with higher levels of commitment. Read the rest of this entry »


Conference focuses on ADR and Costs

March 8, 2008

CLAN, the Commercial Litigation Association, is running a conference on 13 March with an emphasis on Alternative Dispute Resolution and costs.

Called Practical Challenges for Modern Commercial Litigators, it addresses issues including


Litigation insurers have an interest in eDisclosure

December 10, 2007

My heading is not a report that litigation insurers have actually shown an interest in electronic disclosure. They clearly have an interest, though, in the sense that their interests must lie in anything which has the potential to bring parties as quickly as possible to settlement or to court.

The subject comes up with the news that Herbert Smith is apparently the first firm of solicitors to approach a broker directly to find financial backing for a case (see Herbies blaze a trail with litigation funding move in the Lawyer today). The broker was Calunius Capital LLP.

This is getting to be an interesting market, with Allianz announcing in mid-October that it was launching a new fund, aimed at small and medium-sized businesses, to back what they see as “genune” claims – for which read, presumably, ones thought very likely to succeed. Read the rest of this entry »


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