I am not sure what to make of an article which I have found on a blog criticising aspects of Lord Justice Jackson’s Preliminary Report on litigation costs. I have a general rule that if I do not have something pleasant to say in print, I keep my mouth shut. There are exceptions, of course, whom space does not permit me to list here but, on the whole, I reckon it is possible to comment thoughtfully and helpfully on the litigation support industry without attacking anybody, even if I have, occasionally, to grit my teeth.
I have stumbled upon this blog before, tipped off by one of my Google alerts. It seems competent, workmanlike stuff written by someone who (how shall I put this?) understands more about the technology than he does about the civil litigation context in which it is used. I have no problem with that – he knows much more than I do about file systems and data recovery – but I am put off, just a little, by the fact that the site is anonymous, with no clue as to who the author is or with what authority he writes. He calls himself 585. Do this number hold any clues as to his identity? 585 is (as I’m sure you know) the GeneID of Bardet-Biedl syndrome 4, whose symptoms I will spare you. I very much hope that this is not why he chose 585 as his alias. Perhaps it is his telephone extension.
Making adverse comment about people whom you cannot identify is itself fraught with potential danger. It is like making rude gestures at another driver and running the risk that he is 6’5” tall, short-tempered, and heading to the same place as you. It may be someone I know (this is a small world), a sponsor of the e-Disclosure Information Project, or a potential sponsor. Here goes, anyway.
There are in fact some clues. I surmise that he is a mid-ranking employee at a company offering data forensic services, but does not have his employer’s authority to attribute his views to the company. He is not legally qualified, is unfamiliar with some of the litigation-related terminology which he uses, and could do with a spell-checker and a copy of Fowler’s. He is sublimely confident in his opinions and quite happy to hand out criticism of those he has read about in judgments. The bald assertion, in relation to the three important disclosure cases of 2008, that “in all of these cases it appears that the solicitors [sic] firms provided poor advice to their client” is not one I would be prepared to make of some rather prestigious firms without knowing rather more than appears in the judgments. There are side-swipes too at the consultants involved in these cases – if only his own company had been instructed, the sub-text implies, then all would have been well.
That may well be true, but since we are not privy to the identity of his company, it is hard to tell. It is dead easy to look at a judgment and assert (whether as lawyer, expert or consultant) that you would have done things differently. Now that we have these judgments, of course, we all know how to do it next time, at least if the facts (or such of the facts as appear in the judgments) recur. All in all, I find it rather odd to go to the trouble of producing knocking-copy about your rivals without telling your readers where to go for a better service next time.
On the whole, however, this is none of my business. What is written there is not complete bollocks and, up to a point, anything which spreads the word that care must be taken in this area is a good thing. You don’t really need apostrophes to get the message across.
The new article about Lord Justice Jackson’s Preliminary Report is, however, a slightly different matter, for it appears that the clients in those cases to which 585 refers were not the only ones to be given bad advice. Lord Justice Jackson was, the anonymous author thinks, given some “very bad advice” and “his advisors [sic] have to be blamed”; at the least, those who imparted their technical knowledge “failed to get their message across”. Since some of that advice came from me (although, phew, not the “technical knowledge”) I felt I ought to wade through the article to see what were the heinous errors which warrant this condemnation.
Fortunately, I cannot see anything of which Lord Justice Jackson or his advisers should be ashamed – nothing as bad, at any rate, as 585’s reference to a Lord Justice of Appeal as “Lord Jackson” as if he were a member of the House of Lords, and as “Justice Jackson”, a judicial title used in many jurisdictions but not in ours.
Two points in particular arouse 585’s incognito indignation. A reference to disclosure of PST files gives rise to 625 words asserting that this is a bad idea and setting out in minute detail what, in the author’s opinion, would have to be done, stage by stage, to achieve this. 585 is good enough to emphasise that the blame for this egregious error must lie with the advisers rather than with his Lordship, but seems unconscious of the possibility that the Preliminary Report was not intended to be a technical manual.
585 then turns his critical ire on Lord Justice Jackson’s reference to the value of obtaining costs estimates. 585’s observations, to the effect that there are too many unknowns and variables to give accurate costs estimates, are not themselves daft. The passage leaves one with the impression, however, that 585 considers it to be rank stupidity on the part of a judge to ask for some idea of the costs to be incurred. It is, of course, the duty of both the parties and the judge to try and estimate the costs of alternative approaches – that is an essential component of the proportionality assessment which the rules specifically enjoin. Those of us who seek to help judges to understand what is involved in e-disclosure try to avoid simply slagging them off because they lack a ready grasp of the variables which may arise. 585’s conclusion – that it is “impossible to give an honest assessment of cost early on” and that vendors (that is, presumably, other vendors, not his company) “could and should, [sic] to [sic] a better job at estimating costs and data sizes …” is not particularly helpful.
It is perhaps unfair to expect of 585 that he understands the practical difficulties of fitting an iterative technical quart into a procedural pint pot. As he says, estimates of costs fluctuate as more information is acquired, and those fluctuating estimates may make a nonsense of case management decisions made at that early stage when the parties and the court are still trying to determine what is the most proportionate course. What follows from his dismissive observations? That it is a waste of time to try and estimate costs? That his company would make any better job of determining the route before getting the map? It is all very well saying, as he does, that “sampling, concept searching, and early case assessment” should be used to estimate costs, presumably (he is not clear about this) so that more information is available at Case Management Conferences. But it is the Case Management Conference which “decides the scope of disclosure” (as the Commercial Court Recommendations put it) and all that expensive up-front work may be made pointless by a set of decisions made at the CMC. Some work must be done, and in some cases quite a lot of work, to prepare adequately for a CMC. Some cases warrant the application of high-end tools and processes right at the outset. Which ones? This one? There is, as Sir Rupert Jackson says frequently, no one-size-fits-all answer and it is unhelpful to imply that there is.
If I appear to be taking a sledgehammer to a nut here, it is because those of us involved in drafting the new E-disclosure Practice Direction and Questionnaire have devoted a great deal of thought to the iterative nature of information-gathering required before, during and after the CMC. How much work should be expected of parties up-front when the rules are already under fire for front-loading of costs? What is the minimum amount of information required from parties before the CMC? What mechanism should there be for updating the information held in common (or which ought to be held in common) between the parties, and between the parties together and the court? How do we reconcile the costs of applications and the constraints on judicial management time with the court’s continuing duty of active management and the merits of involving judges as arbiters in disclosure disputes? What minimum amount of wording will result in rules which are suitable for all sizes of case?
These are difficult questions, and infinitely more subtle than can be dealt with by simply asserting that it is “impossible” to assess costs, still less by dismissing the input into the preliminary report as “bad advice”.
585 is entitled to his opinions. If I am right in concluding that he works for a competent player in the e-disclosure market, I can see why he is not encouraged to reveal his employer’s name.