The publication of Senior Master Whitaker’s judgment in Goodale v Ministry of Justice is important for reasons beyond the fact that the parties used the ESI Questionnaire which is annexed to the proposed e-Disclosure Practice Direction and which is also annexed to the judgment. The judgment includes a careful recital of the problems raised by electronic documents and of the rules which already cover them, as well as a copybook example of the analysis which a judge ought to make once it is clear that electronic documents exist and should be disclosed.
Senior Master Whitaker is, of course, the chairman (and I am a member) of the working party which drafted both the Practice Direction and the Questionnaire. You will probably be aware by now that the Civil Procedure Rule Committee recently decided that the appropriate course was to kick the PD into the long grass of a sub-committee. The Goodale judgment shows how much can be done by active management from a judge who is willing to roll his sleeves up.
A number of points arise from this judgment, but let me make a few quick ones before you roll over and grunt that this sort of thing has nothing to do with you, or that you do not understand it, or that you need a sub-committee to think about it for you. You may be quite right as to your own work – the cases which you run as a lawyer or manage as a judge may involve no electronic documents at all, or so few that the proper course is to print them. Many cases, perhaps most cases in some courts, need little or no detailed consideration before such a conclusion can be reached. The draft practice direction is carefully drafted to ensure that its provisions apply only in appropriate cases. It is for the parties and the judge to decide that the case warrants such attention and, if the answer to that is in the affirmative, to decide on the proportionate way forward.
Those primary obligations exist in the rules as they stand — Paragraph 2A.2 of the Practice Direction to Part 31 CPR requires parties to discuss their sources and, in case of difficulty or disagreement, to take the problem to the judge, if possible at the first case management conference. Rule 1.4 CPR imposes on the judge a duty of active management to achieve the overriding objective, and Rule 3.1(2)(m) CPR permits the judge to “take any other step or make any other order for the purpose of managing the case and furthering the overriding objective”. Whilst the proposed new Practice Direction firmed up and extended the formal disclosure obligations, they exist anyway, clearly and expressly hedged by the overriding considerations of proportionality.
The second point worth making, whilst I have your attention, is that the Questionnaire can be treated as a menu. It may be helpful to complete some of the questions whilst others are patently irrelevant to your case. Having decided whether the case warrants use of the Questionnaire at all, the parties and the judge may decide on a modified version of it. Its purpose is not to create another bureaucratic layer – indeed, the whole spirit of the thing is to get away from a mindless plod through a half-baked idea of what the rules require and to make everyone focus, and at an early stage, on what is actually helpful for this case. This is not easily grasped, and the Rule Committee itself seems to have had difficulty getting its collective mind round this. What Master Whitaker’s judgment shows is that you can tailor the effort to the circumstances
The Goodale case involves a Group Litigation Order, an area in which Master Whitaker shows considerable skill, originally in the mesothelioma litigation. Such cases have various things in common: the need for cost-effective management of multiple but often low-value claims; the fact that nearly all the documents tend to lie with the defendants; the fact that they often involve questions of comparative treatment or long-term policy, and so may may turn on documents which are scattered in both storage and creation terms (c.f. a typical company contractual claim where, however voluminous, the documents often lie in a few hands and a relatively narrow timescale). They often involve public money – that is no more sacrosanct than private money in this context, but it gives the state an extra motive for managing the process.
Lord Justice Jackson said this in Chapter 39 (on page 390) of his Final Report which covered case management:
3.13 Comments on interventionist case management. One firm of solicitors comments that a phone call or e-mail from the judge is particularly effective in galvanising lawyers into action. I understand that this approach is adopted by the Senior Master and has been taken one step further by the regular use of e-mail for “problem-solving” in the case management process, in order to ensure that directions in mesothelioma cases (where the claimant may not have long to live) are effective and are complied with.
It will be objected, of course, that this type of active management takes judicial time and may itself be disproportionate to the case. That is for the judge to decide. The factors to be taken into account in the overriding objective include this, in Rule 1.1 (2)(e) CPR: “Dealing with a case justly includes, so far as is practicable … allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases”. That duty (and it is a duty, not an option) involves a calculation about the downstream implications of simply leaving the parties to play amongst themselves. That may be entirely right, depending on the case and, indeed, depending on the parties and their lawyers. Taking shortcuts at the CMC often results in expense (and therefore injustice) later.
There are different ways of reporting on sources like an important judgment: sometimes it is best to summarise and comment on them; sometimes I simply suggest that you push off and read it for yourself. This is a short and succinct judgment and it is all meat. I began to copy extracts relevant to the duties of parties and the powers and duties of the court and found myself copying most of it. Master Whitaker is careful to spell out not merely what must be done but why it is necessary in this case that it should be done, and goes on to set out how disclosure might be handled in a way which goes to the most likely sources of useful information first.
He recites the obligations of both the parties and the court. He stresses that the burden must be limited to what is likely to be necessary and no more, and leaves open the possibility of more than one pass at it. He shows himself to be familiar in broad terms with the technology available to help identify candidates for disclosure and to reduce the resulting volumes to sensible proportions. He ends by ordering the completion of the Questionnaire “as a means of providing the claimant and the court with the necessary information in a structured manner”.
“Providing the claimant and the court with the necessary information” – that is the central issue in the management so many of these cases. This is not about adding burdens to cases which do not warrant them. It is not about forcing disclosure of data just because it exists. It is not about technical compliance with the rules for their own sake, nor about the use of technology for its own sake. It is about gathering enough information for the parties and the court to decide what is the best way of managing the case, not just pursuant to the rules but using the discretion which the rules ordain in meeting the overriding objective.
I will come back to this judgment. So will anyone interested in the active management of electronic disclosure with a view to controlling costs – their own costs and those of other parties, in which they have the contingent interest that their clients may have to reimburse them. Those who find this subject difficult, whether lawyers, judges, or members of the Rule Committee, will find here a template adaptable to any case involving electronic documents.