I once did a navigation course in Snowdonia. I knew exactly how many paces I took over 100 metres so that I could calculate when to stop walking before falling over a cliff in fog. I could read an Ordnance Survey map and use a compass to find my way through any thicket or hotpot of sheep to the nearest pub. I could calculate how long any given route should take, albeit based on a series of flawed assumptions which included the assumption that I was fit. I have a certificate to prove all this.
But my last careful OS navigation to the nearest pub was based on a map so old that the pub had closed five years before ({i}that{/i} does not go down well when leading a small group of friends on a wet Sunday) and I take quite few more paces to cover 100 metres than I did – especially uphill. And my calculation for how long a route will take tends to include 20 minutes extra for being lost. The reality is that virtually all my walks involve following carefully printed directions and even then I rely on signposts along the way. The map and compass may always be in the rucksack, but they usually stay there.
All of which brings me, by the longer route through the mud and bracken, to e-disclosure. We are aiming to focus on discovery and disclosure in the next issue of the magazine and I was updating my knowledge of developments. I had tried to catch up on the relevant passages of the report of Lord Justice Jackson, which I had hitherto been excused reading because it had been issued when I was on holiday. I noted that he gave his full backing to the draft Practice Direction and Questionnaire on e-disclosure and wondered what had happened to that particular initiative.
It was timely piece of research because it turns out that it is only a few days since the Rule Committee that has the final say on these things came to consider the draft PD. I may have read too much Kafka at a formative age or had too many dealings with local authorities but, when I saw that the Committee had considered the PD and sent it to a sub-committee, my heart sank. This Practice Direction is the fruit of a tree planted many years ago, when e-disclosure experts Jonathan Maas and Sandra Potter were in short trousers and a gymslip (respectively). It has grown, it has been subject to a number of grafts, it has been pruned and fertilised and finally it has blossomed – very different from that original plant but still sharing some roots. It has the endorsement now of Lord Justice Jackson, following the very full examination that was carried out under his direction. It has been drafted, edited, consulted upon, redrafted and fine-tuned – and that‘s just the work on its latest iteration. It is hard to see what is gained by yet another close examination by yet another committee. If it is shown to be imperfect, the mechanism for minor change is not so rusted that change cannot be made as circumstances dictate.
Many years editing have made me very aware that nothing is ever perfect – one continues to aim for perfection but makes realistic calculations about deadlines and the larger objective and one is conscious that taking too long over material can mean that it becomes outdated. I fear that the Rule Committee may have become so caught up in the search for perfection that they have lost sight of the larger objective. It may be true, as suggested by Chris Dale in his excellent blog on e-disclosure issues, that the draft PD and Questionnaire can act as a beacon showing best practice and that the absence of final endorsement should not prohibit those on the ground from adopting its practices while the sub-committee completes its task (whatever that may be). I cannot manage such a positive view. Few of those ‘on the ground’ have any map (fewer still have an unpublished map), a good quality compass and a certificate in navigation, and even those who do would welcome an extra signpost or two – if only so as to assure the rest of the walking party that they are indeed heading in the right direction. In any case, there is no shortage of examples of litigants who have become so confused in the fog of e-disclosure that they have walked confidently off a cliff – they certainly do not seem to have consulted the draft PD in any of its earlier forms.
It would be very helpful if the Rule Committee were to speed up its publication of the proposed PD – more than helpful, it’s damn near vital – and ensure that only the very bloody-minded fall off these cliffs in the future.
