I am fortunate that both Gordon Exall, in his excellent Civil Litigation Brief, and Professor Dominic Regan (his training website is here), tip me off about cases which are either about disclosure or which (harder to spot) have a disclosure element in them.
I am less lucky in that writing immediately about such things does not sit easily with the events (and consequent preparation and travel) which always fill the autumn diary. I have only one more week of that to go (hurrah), and can start working my way through the backlog. As an earnest of good intent, here is the judgment in Eaglesham v The Ministry of Defence, published earlier this week.
Gordon Exall has already written about this with his customary zeal and promptness, and has extracted the key paragraphs which matter from a procedural point of view. I will focus on the pure discovery points.
The context is that the defendant ministry had not complied with the terms of an earlier disclosure order and was up against the deadline of an Unless Order under which the defence would be struck out and judgment entered for the claimant if disclosure was not given by 21 October 2016. The application for relief from the sanctions was issued only the day before that deadline.
The judgment is not long and I recommend that you read it for yourselves. The points particularly relevant to disclosure include the following:
Close judicial attention, consistent with the duty of “active management” required by the Rules, was given by the various judges who became involved in the disclosure aspects of this case. If the terms of the Unless Order were not themselves enough to encourage attention to the process, the fact that a close judicial eye was being kept on the case might have encouraged diligence.
In terms of the capability of modern disclosure software, the volumes involved were not large.
Because the case involved a government department (and a defence department at that), there was potential for Public Interest Immunity to complicate disclosure.
Such documents as were disclosed (on CD, apparently) were delivered unhelpfully. Paragraph 21 says this:
[The claimant’s solicitor] complains that the documents were provided in random order, with no explanation as to where they have come from, no explanation of the context in which they were prepared, and no explanation of the acronyms/abbreviations used in them. She says that some are duplicates, and that many of them are undated – which as Ms Bowler points out, is singularly unhelpful in a case in which the Defendant’s state of knowledge at particular dates is crucial. There has been no attempt by the Defendant to give even a broad range of dates or details of where the undated documents were found or which department they came from.
This point – the convenience or lack of it in the provision of disclosed documents – is something which matters. In Vector Investments v Williams  EWHC 3601 (TCC), the successful claimant got its costs, but the losing defendant won a costs order for £20,000 because of the unhelpful state in which the documents (paper in that case) were delivered (see paragraphs 84 to 94).
Part of the delay was caused by two rounds of search, using different search terms, which yielded different results. The judge expressed surprised at the omission of some specific terms on the first pass which suggested, she said, that “the original electronic search was not carried out as carefully or conscientiously as it should have been”.
There seems to have been a failure to make proper enquiries of certain departments who were likely to hold relevant documents.
There was, even at this late stage, “the spectre of further disclosure of an unknown quantity of documents which may be relevant taking place at some unknown future stage”.
Assurances made on behalf of the defendants seem to have been simultaneously comprehensive and optimistic.
The judge was “unimpressed by the litany of excuses put forward for non-compliance, apart from the failures of technology which appear to have played only a minor role in the delay”. This point matters – there are very few cases in which technology failures are to blame, just as there are relatively few in which the fault lies with bad faith or deliberate concealment. The problems usually come down to a failure to follow the rules and to process failures – the human aspect of eDisclosure, not the technology.
There was a technology failure in this case but the problems it caused “were by no means the major contributory factor in the delay”.
As an aside, any plan proposed to the court, whether or not an Unless Order is at stake, should have a cock-ups contingency built into it – if something can go wrong, it will.
The judge also made it clear that she was not criticising the senior civil servant whose witness statements had been before the court who was “reliant on what he was being told by other people”. This contrasts with the crushing observation of the Court of Appeal in another and well-known MoD Case, Al-Sweady & Ors, R (on the application of) v Secretary of State for the Defence  EWHC 2387 (Admin) (02 October 2009), where, the Court said of a named officer that if he was “in any way responsible for disclosure, it is our view that any Court seized of those proceedings should approach his evidence with the greatest caution”.
It is clear from the references to multiple databases held across different departments that the MoD was always going to face difficulties with disclosure. Those of you with nice shiny information systems, centrally co-ordinated and governed, might spare a thought for those in government departments required to give disclosure from a set of legacy databases constructed over many years on an ad hoc basis, with genuine requirements of secrecy and no capital budgets to fix the inheritance.
The Al-Sweady judgment referred to above, incidentally, noted the deficiencies of the MoD’s document systems and said that the Secretary of State “should ensure that, unlike what happened in the present case, there is in force an adequate document retrieval system as otherwise much public money and court time will be wasted as in the present case”. This seems unlikely at a time when the MoD cannot, apparently, afford either missiles or planes for its ships.
The subsequent story of the Al-Sweady case – it was one of those run by Phil Shiner and Public Interest Lawyers – does not wipe out these blots.
Accepting that much, the court was unimpressed by both the promises and the process. Paragraph 42 of Eaglesham reads:
The pressure of other work and demands on the time of staff, including SMEs, is also an insufficient excuse, since those factors were known at the time when the original estimate was given and were built into the supposedly “realistic” timetable put before Laing J. If a team of six counsel was insufficient to carry out the filtering exercise in time, the Defendant could and should have instructed more. I am not persuaded that the time and effort involved in educating new team members would outweigh the efficiencies to be gained by bringing them on board if further human resources became necessary.
This is similar to comments made by courts on similar applications who have been critical of the allocation of resources applied to disclosure. That would, of course, have been expensive but the MoD now has a judgment against it in a case where quantum is “estimated to be in the order of £6-£8 million” AS A RESULT OF DISCLOSURE FAILURES.
In every case, one has to make judgements as to the amount of resource to be thrown into battle against the risk. This most usually turns up in the reverse context – parties claiming excessive sums, disproportionate to the sum in issue.
Anyone who says that it is easy to strike this balance is kidding themselves and you.