Cardozo School of Law launches Data Law Initiative

June 10, 2014

The Benjamin N Cardozo School of Law in New York has launched a new programme offering legal training in information governance, electronic discovery, data privacy, social media law and cyber security. Between them, these subjects cover a wide range of areas which are essential for 21st-century lawyers.

The director of the CDLI will be Professor Patrick Burke, Counsel at Reed Smith LLP. The Associate Director will be Professor Denise Backhouse, a shareholder at Littler Mendelson, whose practice focuses on the discovery, international data privacy and security issues. I have known both of them for a long time and can say with certainty that Cardozo has picked the right people.

US Magistrate Judge John Facciola, a well-known judicial authority on eDiscovery and related matters, has long complained that the training offered at most US Law schools differs very little from what he was taught 45 years ago. The course devised by Cardozo aims to remedy that, at least for those fortunate enough to join the courses.

There is a press release about the initiative here. Patrick Burke and Denise Backhouse are supported by a a 20 strong Board of Advisers; I know 14 of them and can say from personal experience that this is as good a selection of advisers as could be found for a law course whose focus is on practical things.

Here is a video interview which I made with Patrick Burke and Denise Backhouse in February in which they describe the importance of the broader educational initiatives to which they and Cardozo are committed. I will be interested to hear from them how it goes.

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Justice takes a bashing but litigation work goes on

April 2, 2014

To say, as I did in a recent article, that that “civil justice in the UK has plunged off a cliff” is not the same as saying that civil disputes are in decline. Litigation lawyers, at least at the mid- to high level, seem to be busy enough, as do most of the London-based eDisclosure providers. The Jackson Reforms, now a year old, have positively generated work for some, although much of the focus has been more on procedural matters than on evidence and issues. Part of this, conveniently labelled “Mitchell”, has been negative, the opposite of the “justice” which the overriding objective requires; part of it, and particularly the eDisclosure aspects, reflect the attention which the rules now require on the sources, the methods and the costs of disclosure. One can deprecate the Mitchell aspects whilst thinking it right that parties are being required to pay early attention to the evidence and to the prospective costs.

Whilst in the US recently, on a tour which embraced both eDiscovery events and a short holiday, I wrote an angry article (“blistering” was amongst the comments I received) on the state of British civil justice. If that seems an odd way to spend a holiday, well, the times are odd and it annoyed me. Better out than in as they say, so I wrote to get it off my chest. The article was headed The Jackson consultation responses pull no punches but Grayling and the MoJ will ignore them.

The article had three targets – a Lord Chancellor who seems ignorant of the basic concepts of justice, a Ministry of Justice staffed by people whom I described as “standard issue overpaid time-servers and… academics who have failed to hack it in the strenuous world of university life”, and senior judges whose understanding of the practicalities of business life is defined by their lifetime experience of working for very big firms, on very big cases, for very rich clients.

I referred to one or two of the responses to the Civil Justice Council’s consultation, mainly to show that my observations were derived from the daily experience of those who have to deal with the consequences of these things. I was at pains to draw attention to differences (identified in some responses) between Lord Justice Jackson’s original recommendations and the position in which we now find ourselves. Quite apart from the fact that he had nothing to do with (for example) the reduction in legal aid, Lord Justice Jackson specifically recommended investment in court systems; whilst he was keen to encourage compliance with the rules, it was no part of his plan that we should have the climate of fear and uncertainty which derives from Mitchell. Read the rest of this entry »


Kennedys seminar on 12th March in Birmingham – Surviving Jackson: one year on

March 6, 2014

Solicitors Kennedy’s gave a seminar this week with the title Surviving Jackson. Many of the points made in it were live-tweeted and the tweets have been collected here by academic and lawyer John Bates @MrJohnBates. They provoke thought.

Kennedys is running a seminar with the same title in Birmingham on 12 March from 2:00pm to 4:00pm. The speakers are Edward Pepperall QC who is a member of the Civil Procedure Rule Committee and Kerry Underwood who is perhaps the most vocal critic of the Jackson reforms. There is more information about this event here.

Knowing the rules is a good start, something which seems to have passed many solicitors by (read some of the judgments if you think I am being overly disparaging here). Anyone might be forgiven, however, for missing some of the implications of the Mitchell judgment and its confusing aftermath. This seminar seems a very good opportunity to try and keep up.

If you are affected by this and are not following barrister Gordon Exall’s Civil Litigation Brief then you should be.

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Plebgate costs sanctions judgment to go to the Court of Appeal

August 30, 2013

Master McCloud’s judgment limiting the costs which Andrew Mitchell MP can recover in his libel case (I wrote about that – see New costs management litigation budget rules claim Plebgate victim) is to be heard by the Court of Appeal.

This reflects the importance which is being attached to early clarification of issues which arise from the Jackson reforms which took effect on 1 April. Five appeal judges, including Lord Justice Jackson himself, have been appointed to hear such appeals. My view is that the Master was given no option by the express wording of the sanction specifically provided for in the rules:

FailureToFileBudget

…with her room to order otherwise trammelled by the policy made clear in the Master of the Rolls’ speech about relief from sanctions (see my earlier article for a summary of this). Whether the policy is right is a different matter – I think it is (sorry), but that is distinct from my conclusion that the Master was right.

There is more information about this in an article in the Lawyer called CA to hear “plebgate” costs challenge after High Court cuts libel budget.

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Costs management – relief from sanctions under CPR 3.9

August 15, 2013

One of the things I had hoped to achieve before setting off to ILTA was a post pulling together what one knows of reports of relief from sanctions cases under Civil Procedure Rule 3.9 specifically relating to costs management and budgets.

I am relieved of this non-trivial task by the fact that costs lawyer Andy Ellis has written just such an article, published today by the Law Society Gazette with the heading Relief from sanctions in costs budgeting

The report is right up to date, including the main points made by Master McCloud in the “plebgate” libel action on which I wrote here.

You won’t find a better survey than Andy’s article of the factors which the courts are taking into account as they reconcile strict duty with fairness.

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New costs management litigation budget rules claim Plebgate victim

August 9, 2013

The former Overseas Development Secretary Andrew Mitchell is the latest victim of the strictly-applied new costs management rules. The solicitors acting for him in his libel case against NGN failed to file a budget as required by the Rules, and Master McCloud has declined to relieve Mitchell of the sanction provided by the rules. You will find helpful articles on this, one on the Litigation Futures website called Tough enough? Failure to comply leaves “Plebgate” MP with budget limited to court fees, and in The Lawyer, where the headline is High Court caps ‘plebgate’ libel budget to court fees for Andrew Mitchell MP.

Let’s deconstruct this a little, particularly for the benefit of those who are interested in the budgeting developments in the Civil Procedure Rules but not necessarily familiar with the context, whether the news context or that of the Rules. The budget story would not have seen daylight if the particpants were not well known and linked by a news story of public interest.

The origin of the libel claim

Ever since Watergate, the press has routinely added the extension “-gate” to any kind of scandal. “Plebgate” differs from most in that it does actually involve a gate. The press loved it when ambitious Cabinet Minister Andrew Mitchell was reported as having addressed Downing Street security police as “plebs” when they made him wheel his bicycle through a side gate instead of opening the main Downing Street gates as (it was said) he deemed to be his right.

There was something for everybody in this story: for many, it seemed to prove that Cameron’s Conservative government was made up of unpleasant toffs who despised anyone who had not attended a private school; for others, it was another example of officious little jerks in hi-viz jackets using their petty power to inconvenience the public they are supposed to serve. Mitchell clung on for a few days, cautiously supported by the Prime Minister, but was eventually forced to accept the inevitable and resign.

It was only after this that holes started to appear in the story. The CCTV evidence did not support what the police said (why did no-one ask for it immediately?), and it gradually became clear that there had been a concerted plot to “get” Mitchell by inventing the story; arrests were made, the police had egg all over their faces, and an expensive police-on-police inquiry was launched. Mitchell began libel proceedings against the publishers of the Sun newspaper which had swallowed and repeated the police story whole. It is those libel proceedings which are the subject of the costs story. Read the rest of this entry »


Battle over costs budgeting for high-value commercial cases

August 2, 2013

Here is a battle to keep out of, so I simply pass on the facts as they appear in an article by John Hyde today in the Law Society Gazette. Well, a bit more than pass them on, perhaps, but I will duck any attempt to take sides. Not really, anyway.

The article is headed City lawyers plead to keep budgeting exemption. The context is the decision, made during Lord Justice Jackson’s consultation period, that the Commercial Court should be exempt from the costs management and budgeting provisions which were to apply elsewhere. It is possible that the exemption was a pragmatic concession, leaving out the Commercial Court because it was going to be too tiresome to fight about something which had the potential to stand in the way of broader advances. It looked similar, to my eyes, to a battle commander’s decision to leave a strong fortress unstormed whilst pressing on with the rest of the campaign.

It was not just the Commercial Court judges who were against costs management. Many of the lawyers who bring high-value claims to the Commercial Court were strongly opposed to the principle of budgets, asserting that their clients weren’t interested in them; the nature of Commercial Court litigation, they said, was such that budgets would be time-consuming, expensive and of little value. These are the same arguments which are being run now, according to John Hyde’s article.

If I appear cynical about this, it is partly because of what happened after the new Rules passed into law, itself only a few days before the implementation date. At that rather late stage, the judges of other divisions with high-value cases became alerted, apparently for the first time, both to the proposals for cost budgeting and to the exemption won by the Commercial Court (the rest of us, I should observe, had known of the costs management proposals for a year or so by then). There followed what was, by judicial standards, an unseemly scramble, with the Chancery Division and certain specialist courts apparently basing their late claims for exemption on a kind of protectionism – if the Commercial Court did not require budgets, then parties would take every opportunity to issue their proceedings in that court, it was asserted, leaving their Lordships in the other divisions straightening their pens and scratching under their wigs in empty courts.

To me, this looked rather like supermarkets trying to restrain the grant of planning permission for a rival, and had little to do with justice, or with commercial reality for most clients for whom a litigation project is no different in kind to any other project. If you plan a new building, seek to acquire a company, or open a new line of business, you do an analysis of risk, cost and benefit. That may change as time goes by, but at least the decision has been made on an informed, prudent and defensible basis. It is hard to see why litigation is any different.

It is clear, however, that many high-end commercial litigation solicitors think otherwise, including some whose opinion I respect, and I am not going to get into an argument in which principle conflicts with the experience of those who deal with high-end clients and their litigation every day. I will observe only that we do not seem to have heard from any of these clients in this dispute. What do they think about the idea of budgets from their own lawyers and from opponents?

According to the Gazette article, a decision will be made in the autumn.

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