If Lord Justice Jackson’s review of Civil Litigation Costs included the most important summary of disclosure and e-disclosure of 2010, the Australian Law Reform Commission’s Discovery Review will be the key analysis of 2011. The Attorney General’s terms of reference attracted my attention because of the reiterated phrase “as early as possible”, which seems the right priority for all jurisdictions which require discovery of documents.
The ALRC has now published a Consultation Paper. The closing date for submissions is Wednesday 19 January 2011. So far, I have skimmed it rather than read it in my short gap this week between conferences in London and in Washington. My quick skim was sufficient to see that there is much useful thinking in it and I look forward to reading it properly on the plane.
I did, however, pick up two references in it to things which I have written. One of them, read out of its context, has the potential to misrepresent my views in much the same way as a few carefully chosen words from a play review on a theatre billboard can subvert the original sense. I stand by the quotation, but its words were something I had set up in order to knock them down, not my own opinion.
The first quotation attributed to me is in paragraph 3.115 on page 83, which picks up my report (the italicized passage below) of something HHJ Simon Brown QC said at a conference in 2008:
“The approach which judges in the UK have adopted to achieve a narrowing of issues was aptly summarised by the Mercantile Judge Simon Brown QC:
What I want to know, is this: what is this case about? Which of the … issues really matter in getting to the heart of the dispute? Can we split the case up and limit disclosure to the subjects which matter, or which matter most?”
It might have been better to refer to “a few judges” rather than give the impression that this degree of thoughtful focus is widespread amongst UK judges. HHJ Simon Brown QC has been a tireless advocate of active case management of electronic disclosure, not least (as he emphasised at a conference yesterday) because he generally manages the cases which he will have to hear. This gives him an incentive to make everyone involved focus on the issues at this early stage, and on the evidence needed to support his fact-finding about those issues. Judge Brown has also described the case management conference as a “business meeting” and the judge as the “end user” of the discovery process. These are both useful descriptions of the role of both the CMC and the judge.
It is the second quotation which may give a false impression of my views when shorn of context. It comes in paragraph 3.154 on page 91 of the Consultation Paper which reads:
“The cost of drafting a discovery plan to file in court would also add to the up-front expense of litigation. This may be a particularly involved document in complex cases where sophisticated software is used to search through vast databases of electronic material. Similar concerns have been raised in relation to lengthy questionnaires in the UK:
the general form of the complaint is that there is already too much pre-issue and pretrial paperwork and that the questionnaire merely adds to the pile.”
The passage in italics is mine, and comes (as a footnote makes clear) from an article called Over-estimating both costs and risks in the e-Disclosure Practice Direction , published on 20 September.
The clue lies in the title. My article is in part an attack on those who criticise the eDisclosure Practice Direction and Electronic Documents Questionnaire without having read either of them. It acknowledges that there is a legitimate debate about the amount of the pre-action and pre-trial work which lawyers are now required to do, making it clear that I am in the camp which believes that lawyers already face too many unnecessary burdens en route to trial. I do not believe that the questionnaire adds to the burdens, because it applies only in those cases where real value will follow in conducting the balancing exercise between risk, burden and value on the one hand and cost on the other.
The ALRC Consultation Paper correctly uses my quotation as a source for the assertion that there is UK concern about up-front duties and costs – something which Australia seems keen to avoid, in part because of the UK’s experience. I am equally keen to make it clear that I am with them on this. We will have to see how it goes. I am reasonably clear that the Australian Discovery Plan is a more onerous undertaking than will generally be the case with the UK Questionnaire. That is one of many reasons for keeping up with the Australian developments – only by doing that will we evolve an understanding of the ratio between up-front input and cost-reducing effect.
My thanks to both Geoffrey Lambert and Seamus Byrne for drawing my attention to the consultation paper.