On Wednesday 16 January, I had the pleasure of attending a seminar organised by the Society for Computers and Law entitled “Technology and Dispute Resolution”, delivered by the eminent Mr Justice Akenhead and chaired by SNR Denton’s John Linneker. The event was (unsurprisingly) very well attended, as a large number of practitioners in the field braved the cold weather and descended on Fleet Place to hear Sir Robert’s unique insights into the use of technology in the Technology and Construction Court.
Sir Robert set the tone of the discussion with a story from his early career, where an enterprising expert witness used a computer model, along with a number of inaccurate figures as inputs, to demonstrate that a particular jetty in the Dutch Antilles could not possibly berth tankers above 250,000 deadweight tonnes. Pointing to the hundreds of examples of ships that had done exactly that, Sir Robert’s leader at the time taught the gentleman in question the meaning of the phrase ‘garbage in, garbage out’ – something that we are oft liable to forget when dealing with increasingly sophisticated technology, the shortcomings of which are often not apparent.
The discourse began with a précis on the use of IT systems in courts around the world. Sir Robert highlighted the key uses of such systems (initiating proceedings; creating and maintaining the court file; the programming of the case; and managing documents), and cantered through the particular issues that arise in those uses – for example, balancing the need for security against the right for third parties to have necessary access to certain parts of the file. Following abandonment of the Electronic Working System in the High Court in March, it was interesting to hear that other jurisdictions have successfully used such systems, and that there are plans to implement a replacement system in England in due course.
Turning to the topic of e-disclosure (the purpose of which is to mirror standard disclosure), Sir Robert highlighted the key concern of cost management arising not only out of the overriding objective of the Civil Procedure Rules and the provisions of the Practice Direction but, more importantly, the best interests of the client.
Sir Robert emphasised the importance of an early discussion around e-disclosure between litigants and pointed to the requirement in the Civil Procedure Rules to discuss this prior to the first case management conference, which can often take place before the close of pleadings in the Technology and Construction Court (where case management is more judge-led than in other courts). He suggested that it is frequently sensible to have an early without-prejudice discussion with the other party to discuss electronic disclosure, and that he was in favour of building in time for a two-stage process where there is a genuine dispute between the parties as to the protocol to be followed.
The use of an ‘entire database’ approach to e-disclosure was referred to, but Sir Robert cautioned against using this method unjustifiably. His principal concerns are the bias in favour of the disclosing party with regards to the cost benefit/burden, and the conflict with the Practice Direction in disclosing a significant proportion of irrelevant documents.
Sir Robert briefly touched on the use of technology at trial, and contrasted the usefulness of a semi-automated transcript with the lack of practicality of using document management systems when cross-examining witnesses.
In line with the tone of the other elements of his address, Sir Robert ended with a suitably technology-project orientated joke in response to which there was – surprisingly given the subject matter – no cringing. Overall I felt that this was an hour well spent, and an ideal opportunity to listen to a knowledgeable and distinguished speaker deliver an informative and entertaining presentation on a topic which is likely to affect many of us in the coming years. I sincerely hope that SCL can entice Sir Robert back to talk to us again in the future.
Chris Eastham is a solicitor specialising in TMT, IP and outsourcing.
