A couple of articles, both published today, deserve attention from those interested in disclosure in England and Wales and, specifically, in the courts’ approach to it.
One, by Kerry Underwood, is headed Disclosure cut by 90% by Commercial Court. The headline puts us on notice of some fierce court control. The other, called Electric Reams, is by Rachel Rothwell in the Law Gazette. It is a wide-ranging survey of disclosure, based on interviews with a number of people, including me. I will come back to both articles below.
After the excitement (a relative term, I appreciate) of last year’s judgments in Pyrrho and in BCA Trading, the law reports have not troubled us much in recent months. ICI v Merit Merrill (I wrote about that with the title What will your disclosure conduct look like under the judicial spotlight?) gave us another example of the court generally dissatisfied with a party’s conduct of disclosure. Tchenguiz v Grant Thornton (I wrote about that with the title Tchenguiz v Grant Thornton – proper use of the “menu” and the overriding objective) gave us a judge lamenting that no one was taking much notice of the opportunities offered by Lord Justice Jackson’s 2013 reforms, specifically in relation to the Menu Option. I will not stop now to list the narrower and more specific cases (I have an article coming up with a survey of these). We have not seen much about big issues of principle.
The Tchenguiz case gives support to something which has been my constant theme for a decade or so – that the rules give us plenty of opportunity to narrow the scope of disclosure while yet complying with obligations to opponents and the court, and without imperilling a just decision. It was an express part of Lord Justice Jackson’s ambitions to encourage discussion to do what was right and proportionate for the case rather than simply ticking a default box for standard disclosure. Anecdotally (I heard it said last week, for example), although there is sometimes a token debate about the Menu Option, it almost always ends with the “default” choice of standard disclosure. I put “default” in quotation marks because there is not supposed to be a default option any more.
All that is comprehensively covered in Rachel Rothwell’s article. Before looking at that, however, let’s look at Kerry Underwoods “disclosure cut by 90%” article. That involves a case called Bank Mellat v Her Majesty’s Treasury  EWHC 2409 (Comm) which, so far as I can see, is not yet on BAILII.
At the heart of the dispute before the court were questions about scope and sampling. The defendants wanted wanted the claim “properly tested” by requiring disclosure of a very large number of documents relating to many transactions. The claimant bank said that this would be an “extremely onerous and expensive task” with significant time and cost implications.
The judge ordered that disclosure should be limited to a randomly-selected 10% of the transactions, stressing that “reliable evidence” must be given in respect of the sample. He left open the possibility that further disclosure might be required at a later stage.
The only realistic argument against this course would require two things – a credible assertion that further wider disclosure would almost certainly be required, and an argument that such further disclosure would cost significantly more by reason of being done in two or more tranches. If that argument was advanced, it does not seem to have worked.
Rachel Rothwell’s article opens with commentary on the point made by the judge in the Tchenguiz case – that not enough use is being made of the flexible options provided by Lord Justice Jackson with his “menu option”.
Various factors may be blamed, Rachel Rothwell says, ranging from inertia and habit through to a client mentality which insists on a war of detail and volume, by implication regardless of cost.
This is perhaps a good time to mention the Court of Appeal judgment in Nichia v Argos where Lord Justice Jacob observed, among other things, that there is no obligation to look under every stone. The phrase recurred in the judgment in Digital v Cable & Wireless:
… what is generally required by an order for standard disclosure is “a reasonable search” for relevant documents. Thus, the rules do not require that no stone should be left unturned. This may mean that a relevant document, even “a smoking gun” is not found. This attitude is justified by considerations of proportionality. This point is well made by Jacob LJ in Nichia v Argos [Para 46]
If my motto in recent years has been RTFR (“Read the F*** Rules”), my more recent one has been “Articulate”. Ed Crosse of Simmons & Simmons is quoted as saying that there is “not enough engagement and cooperation between the parties in relation to disclosure” and that judges can only challenge proposals “if they are provided with information about the scale of the task at hand”. Judges do not have much time, and lawyers must get better at articulation of what they want rather than just falling back on standard disclosure.
Two examples come to mind. One is from an Irish case, Irish Bank Resolution v Quinn, in which McCann FitzGerald successfully argued for the use of predictive coding technology in the face of both fierce opposition and, so it seemed, the rules as they had hitherto been accepted. The judgment shows that the arguments were not merely eloquent but backed by expert evidence and estimates of costs which would be incurred with and without McCann FitzGerald’s preferred approach. The judge was impressed by McCann FitzGerald’s thoroughness and less so, one deduces, by that of their opponents.
The other example worth looking at is Pyrrho where the chief protagonists, Taylor Wessing and RPC, faced deadlock over the scope of disclosure and the method proposed for dealing with it. Then they “got in a room” (as Taylor Wessing’s Ed Spencer put it) and found a solution which, by using predictive coding technology on agreed terms, cut through the volumes and the cost without bringing risk to either client.
Rachel Rothwell’s article, like Kerry Underwood’s, refers to a pending redraft of the rules relating to discovery by a working group chaired by Lady Justice Gloster. It is rumoured that whatever comes out of these discussions will go straight to a pilot, by-passing both the Rule Committee and any public consultation. I will keep my powder dry on that until I see what the proposals consist of.
Most of the rest of Rachel Rothwell’s article, referring to interviews with me among others, is about the growing acceptability (some of us would say necessity) of using technology like predictive coding / technology assisted review to cut down volumes in a defensible way, to harness technology to magnify the input of senior lawyers, and to rank documents in a presumed order of relevance.
I stressed the value of the ten succinct points set out by Master Matthews in Pyrrho in favour of the use of predictive coding in that case, most of which were expressly adopted by the registrar in BCA Trading. I pointed Rachel Rothwell to the RBS Rights Issue Litigation, the source of more than one damning quotation about the manner of conducting disclosure which I quote relentlessly. I wrote about that judgment in an article called RBS Rights Issue Litigation: considering whether the eDisclosure process had overtaken the purpose, quoting the key points from the judgment and picking out this passage from paragraph 8:
….the commitment of increasing resource to the identification of documents, leaving a diminished resource for their assimilation, without properly taking stock as to whether the process had overtaken the purpose and/or whether a more confined process should be adopted, perhaps with the agreement of the Claimants or the blessing of the Court;
I added two points. One was that this approach scales down as well as up, with many of the judge’s points as applicable to small cases as to large ones. I also suggested that it would be wise not to be too critical of a firm which finds itself in this position:
Yes, “something has gone wrong” as the judge put it. Before you throw stones, consider the glass house in which you live.
So what you get out of all this? Use the rules, and in particular Lord Justice Jackson’s interpolations of 2013, to argue aggressively for something more restricted than “standard disclosure; find out what technology exists and consider how it might safely be used in pursuit of a reduced review set; and put yourself in a position to articulate, clearly and simply, what you want from disclosure.
My favourite rule here is not a new one but comes from Part 3 of the rules as amended by Lord Woolf in 1999. The relevant rule is CPR 3.1(2)(m), and it reads:
Except where these Rules provide otherwise, the court may –
take any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case.
If the court can make any order, then you can seek any order. That requires more than simply ticking a box called “Standard disclosure”.