The Times is collecting lawyer jokes at the moment. Have you heard the one about the minister who promised a case management system for the civil courts by 2002? So had Lord Justice Brooke, the Judge in Charge of Modernisation. He obviously collects government promises and captures them on PowerPoint slides like a lepidopterist. He showed us a few. They were very detailed and specific, like a butterfly’s wings – and were just as ephemeral as a butterfly, here today and gone tomorrow.
More than 350 people turned out to hear Lord Justice Brooke and other speakers, including the Master of the Rolls, the Chairman of the Bar, the President of the Law Society, the Head of Technology at the Department of Constitutional Affairs (DCA) and other serious commentators. That’s a lot of interested people and a seriously starry array of speakers for a topic which has conspicuously failed to make much impact in a decade of enormous IT investment in both the public and private sectors.
This article:
· summarises what was said about the lack of government support for the civil courts
· looks at the background to a new practice direction which may at last bring compulsion to the use of IT in civil proceedings
· examines the detail of the proposed practice direction and the implications for practitioners
· explains how practitioners and those responsible for case management can start tomorrow to use IT for the over-riding objective of CPR 1.1.
The title Think Big. Start Small. Scale Quickly is borrowed from the speech of the President of the Law Society. “Think big” refers to the ambitions of those who confidently expected the promised investment in the civil court system. “Start small” reflects the reality, but implies that something at least can be achieved. “Scale quickly” implies that the first step is the hardest but that once it is taken it is easy to move onward.
The Public Interest (or lack of it)
The seminar concluded that the government sees the civil courts as essentially a private rather than a public matter. A mere £75 million is being spent on core infrastructure. It is already allocated and there is no more to come – any further investment must be raised directly from court fees or from a PFI initiative funded by future court fees. A new team at the DCA is doing good work within these narrow funding constraints, particularly in relation to raising public awareness of the courts’ role. The per capita IT spend of the Law Officers is a fraction of that spent in other departments. Far from being the stick-in-the-mud Luddites of popular perception, many judges chafe at the lack of progress, not just from above but from the practitioners who use the courts and (surprisingly) from the clients who were expected to exert greater pressure for change. It was important to keep
Process and Procedure
This formal part of the show was important rather than interesting or surprising – “New Labour breaks promises, bodges IT investment, shows no interest where no votes at stake, ignores business” is hardly headline news. The more interesting bit was the second stage, when the big-wigs had gone and the seminar turned to its advertised purpose – “exploration of the impact of IT on the process and procedure of the Civil Courts today and in the future”.
The star turn here was a draft Practice Direction called Guidelines for the Use of Technology in Litigation in any Civil Matter. It and its associated Protocol amount to an expectation that parties will use IT for communications between the court and between the parties, for disclosure, for trial preparation and for presentation in court. Its true significance lies in the fact that it depends entirely on the initiative of those who are most affected:
· the judges and case managers who chafe at the obstruction of government and the apathy of practitioners will have the power to impose the use of technology where that is proportionate
· the more technically-aware solicitors will be able to lead their partners, their opponents and their clients towards the more efficient conduct of litigation
· no public money (and concomitant foot-dragging) is involved
· and above all, the over-riding objective set out in CPR Rule 1.1 will be served as Lord Woolf originally envisaged.
I will turn to the detail below. It is worth looking first at the context and at the reasons why this has become a necessary development.
The Context
There have been some false dawns on this subject. 1993 brought the ORSA Protocol, a first pass at defining standards for data exchange, which foundered for lack of any widespread encouragement (still less compulsion) from the courts.
Next up was Lord Woolf, whose Interim Report of 1995 devoted a whole chapter to the benefits of IT in reducing costs and speeding up the litigation process. This all mysteriously disappeared in the new Civil Procedure Rules of 1999 which gave no encouragement at all to the use of technology – one suspects that any reference to computers was struck out by civil servants who suspected a cost falling on the Lord Chancellor’s Department. What has happened to bring the subject back onto the agenda?
The answer lies in a mixture of long-term movements and sudden initiatives. All was not entirely dormant. The larger firms exchanged disclosure data between themselves on an ad hoc basis, and an interest group arose from this. Called LiST, it consists of client-aware litigation support managers who worked up a new draft Protocol for data exchange.
Even as the CPR purported to limit the scope of Disclosure, technology was moving the goal-posts. The proliferation of e-mail and the ability to send messages and attachments, to reply to them, forward them and blind-copy them widely, led to a steep increase in the number of potentially disclosable “documents”, many of which are never reduced to paper in business life. At the same time, the pressures of court-led timetables, client-driven cost considerations and penalties for over- as well for under-disclosure, placed a greater premium than ever on sorting relevant documents from irrelevant, important from unimportant, disclosable from privileged, and on weeding out duplicates and exchanging documents with the other side.
The mechanics of capturing, storing, filtering, categorising, sorting and printing disclosure data, and then of exchanging it with others are well established. Clients are mystified that their electronic data, electronically created and electronically exchanged between themselves so efficiently, has to be printed off, photocopied several times and entered row by row into a word-processed list which is itself then printed and taken up the road on a bicycle (where someone else re-types the information into their list). The missing element was the push from above.
Meanwhile, Lord Justice Brooke was nearing the end of an 18-year haul to bring the courts and their processes into the present. He was frustrated at every turn, not least by the apathy of solicitors whose unwillingness to embrace new ideas he saw as suicidal. He has been Judge in charge of Modernisation for over three years, he is now Vice-President of the Civil Division of the Court of Appeal and he has been appointed editor of the White Book. He is close to the end of his career and, if he would not relish the epithet which Randolph Churchill once threw at
It took an external force to convert all these endeavours and aspirations into something concrete. Sandra Potter was involved in setting up the first electronic court in
I argued for a different emphasis. The requirement, I said, could be summarised in a few words: “parties will give Disclosure electronically unless the Judge or Master considers that it will be disproportionate for them to do so”.
Others felt the same. It gives some idea of the speed at which things moved that my article, published soon after the last Potter draft was circulated, became redundant within ten days when a new draft Practice Direction was produced by LiST with help from the barrister Clive Freedman. The new draft was presented in time for the LSLA seminar.
Sandra Potter was a speaker at the seminar. Her mission, she said, was to change technology from a weapon in the hands of the big players to a tool available to all. Her focus had been on the exchange of court documents, disclosure of data, the use of IT at hearings, and costs.
The issues within the courts had included getting the courts to make orders and give directions with respect to the new Practice Direction. She distinguished between “education” and “training” – the former (with its wider connotations of understanding the context) was more important.
The issue for firms mainly involved disparity between them – the big boys liked the “weapons” approach and the medium-sized firms needed to know what to do and say at case conferences. Who paid costs, both at the time they were incurred and at the end of the day, and on what scale? The solution to this had been to establish benchmark costs (ie a rate set for each type of activity) with a Taxing Master as part of the team.
The upshot was that judges had power informed by understanding to require IT use where that was appropriate, and that lawyers had weight behind them when encouraging clients towards the use of IT in litigation.
The Draft Practice Direction
So much for the background. What does the draft Practice Direction say?
At present, it is quite possible to give disclosure in compliance with Part 31 of the CPR without using a computer at all. The Guide to the Technology and
The draft itself is available on the SCL Web site. It is quite difficult to summarise it, for the wholly creditable reason that it is all meat anyway – it is already a concise distillation of what will be required of parties. I will pick out the sections relevant to the primary obligation to disclose and exchange documents.
The scope of the draft Practice Direction is set out in the Introduction:
1. This Practice Direction provides a framework for the parties to co-operate in making appropriate use of technology in civil litigation, thereby enabling the court to dispose of proceedings in accordance with the overriding objective referred to in CPR Rule 1.1.
2. The use of technology by the parties to civil proceedings is encouraged where it is likely substantially to save time and/or cost, or to assist the court in dealing with the case expeditiously and fairly.
There follow some definitions – “Documents”, “Disclosure List” and “Disclosure Documents” have the meanings already given in the CPR but a new one is added: “Disclosure Data” means “data relating to Disclosure Documents, including for example the type of document, the date of the document, the names of the addressee and the recipient, and the party disclosing the document”. This, of course, is the information which appears in a conventional Disclosure List. It is now elevated to the status of “Data”. It always has been “data” in the broad sense of the word; the label in this context signals the requirement to split the information into its component parts so that it can be put into a “database”. I expand on this below.
The guts of the new obligations lie in para 5:
The parties shall consider at the earliest opportunity and keep under review the extent to which technology can assist in
(1) communications with the court and between the parties
(2) disclosure
(3) preparation for trial
(4) the presentation of their cases at trial
(5) the court’s fair disposal of the proceedings.
The Potter version was less forceful: it merely said that parties were “encouraged where appropriate” to use IT for various specific things. The CPR as a whole rarely relies on mere encouragement, preferring a more dirigiste line, albeit one tempered by discretion.
Paragraph 6 relates to the Case Management Conference. Wherever “it might be advantageous to make use of technology” and/or where “disclosure of a substantial quantity of material held in electronic form is likely to be required” the parties “shall exchange such information as may be necessary to enable them to reach agreement on how technology may best be used in the proceedings”. Three weeks before the Case Management Conference, parties must exchange information about volumes and descriptions of documents and say what steps have been taken or might be taken to manage documents.
Parties must “endeavour to reach agreement on all matters relating to the use of technology”, including how to exchange electronic versions of documents and of disclosure data, what equipment might be needed and what help the court will require. They must provide the court with a summary of all this, and be in a position to address the court on the subject, whereupon the court will “give such directions on the use of technology as may be appropriate, having regard to the overriding objective referred to in CPR Rule 1.1.” The parties must keep each other informed thereafter as to any changes.
Lastly for our present purposes, para 9 lays down the “methods and formats” for the exchange of documents and disclosure data electronically. There will be a protocol – a set of rules as to data fields and document formats – which “should be adopted unless it is inappropriate”. The parties may agree something different if it is appropriate to do so but “If parties fail to agree on the methods and formats to be adopted, the default methods and formats . shall apply unless the court orders otherwise”.
Let us reduce this to the shortest possible statement. Parties will be required to consider and discuss how IT can be used effectively from disclosure to trial and must do so before the Case Management Conference. They will have to list their documents as data in fields and exchange electronic copies of them. The only limitations on this requirement lie in the words “as may be appropriate”, in the proviso as to the over-riding objective, and in the concept of proportionality.
For many firms, and not necessarily just big firms, this is what they do anyway. From others will come mutterings about “front-loading costs” and their over-burdened (or under-skilled) IT departments. Some will complain that the skilled art of disclosure has been reduced to a data-processing task.
The rest of this article explains why these fears are either misplaced or irrelevant. The smallest firm, with the minimum IT skills, can comply with the new requirements and do so at a cost which is no greater, and probably less, then the present costs. And the mechanics of disclosure is indeed mere data processing. You justify your fees by your ability to decide what goes in and what is left out of the list, and what use to make of what is listed, not by the form of the list or the tools used to create it.
How to comply with the proposed new requirements
This section addresses the simplest scenario – two parties to litigation have been ordered to give disclosure electronically under the new Practice Direction, and have been referred to the court-approved Protocol for Data Exchange and the “default methods and standards”.
The aim of both these documents is to set out some basic rules which, if followed by both parties, will make it both easy and cost-effective for them to give each other electronically what has conventionally been supplied on paper. Those who are drafting the Protocol say that they will consider themselves to have failed if the “minimum” standard is beyond the reach of most firms.
The Protocol is in draft and will change as to detail, which is why I do not consider it here. Instead, I look at the basic elements of any electronic exchange. These consist of the same two components as at present – a list of documents and the documents themselves. The list is in a form which generally looks like this:
| List No | Description | Date |
| 327 | Letter from John Watson of Baker Street Ltd to Henry Baskerville of Moors Ltd | 23/04/2001 |
The maker of the list usually needs to know at least two other things about the document – where it came from (eg whose file was it in) and where it is now (so he can produce the original when so required). He also needs to make two decisions about it – is it relevant? and is it privileged? None of this appears on the face of the list as served.
We can look at these components – the list and the documents – separately.
The List
If you break down the components of the entry shown above, it consists of five elements:
A number – usually reflecting the document’s place in an ordered (usually date ordered) list
A Description – what the document is – “Letter” or “E-mail”, sometimes with more detail (“Letter about draft contract” or “E-mail attaching draft contract”)
Author – the author, sender or creator of the document
Addressee – the addressee or recipient of the document
Date – the date on which the document was prepared or sent.
It is not excessively technical to describe these components as “data” or to say that they might exist in “fields”. A collection of columns (eg all the list numbers) and rows (holding all the information about a single item) makes a “database”.
The only real difference between the example extract from a traditional list of documents and the technical-sounding “database” is therefore the number of units into which the information (or “data”) is broken up. The list might just as easily have been laid out thus:
| List No | Description | Author | Recipient | Date |
| 327 | Letter | John Watson of Baker Street Ltd | Henry Baskerville of Moors Ltd | 23/04/01 |
A Microsoft Word document containing a table laid out like this should comply with the “default methods and standards” or an acceptable variant on it. It uses exactly the same convention as most people have always used, just laid out slightly differently. What matters is that all parties adopt a single, agreed standard and that the courts provide easily followed guidelines. Two parties who agreed to adopt this style could easily merge the two tables to make a single list.
You can go one better with a Microsoft Excel spreadsheet. A novice could set out the data shown above in Excel. Excel brings better sorting and filtering capabilities than Word and would allow you to add extra columns to record other information about documents. The source and location, and the decisions about relevance and privilege, could be included in your copy of the spreadsheet but omitted from the version sent to opponents.
Few firms can say that this is any harder than their present mode of typing up lists. The benefits are considerable, even just at the level of saving retyping. Furthermore, the ability to exchange goes beyond simple swaps into the same software tool. A list constructed by this means could be imported into a dedicated litigation system; conversely, the output from most litigation systems, however grand, could be provided in a form readily stored in a spreadsheet. David & Co from the High Street can exchange with Goliath LLP from London EC2.
Electronic Files
What about the documents themselves? Many exist only as paper but most are in the client’s possession as electronic files – word-processed documents, spreadsheets and mail files. There seems little point in printing and then photocopying them when they might be supplied by the client and delivered to opponents in their original form. E-mail files have the bonus that the data within them – the senders, recipients, subject line, date and, indeed, the entire body of the message – can be exported and merged with typed data about other file types, with the message itself disclosed as a free-standing electronic file complete with attachments. Documents which exist only as paper can easily be scanned as images and the whole lot delivered to the other side with the electronic list.
There are some caveats, of course. One is that lawyers like paper and many are not comfortable with reading on screen. Electronic files may contain information beyond what appears on their face. You may need help to export from mail files but the time saved in typing is considerable. Larger disclosure exercises may raise issues about duplication, attachments and so on but these are the same issues which would arise in the same matter if the disclosure were handled with word-processor and photocopies.
The point to grasp is that “data exchange” is not a black art practised by technicians in the IT departments of large firms, but can be a straightforward application of the tools available within any lawyer’s office.
When you have made a few simple lists and exchanged them and their associated electronic files with others, you will soon want to do more – to code your entries by issue and by witness, to make electronic bundles of sub-sets of documents, to print bundles of images with page numbers on them or to send the whole lot to your client, barrister or expert. But you do not have to do this.
An over-complex requirement will kill the initiative. The true benefits of electronic listing come from practice and experience, and one needs to start with the sailing dinghy of everyday cases before taking charge of the ocean-going vessel of major litigation. The proposed new Practice Direction will give impetus to this.
Conclusion
The slow take-up of IT in the process and procedure of litigation has derived in part from two fundamental misconceptions. One is that a vast amount of public money is needed to make a start. The other is that is it is difficult to give disclosure, to prepare for trial and to present a case using technology. Neither is true. The cases which involve high costs are those which would have been difficult and expensive anyway. The majority of cases are not of this nature.
These misconceptions are to blame for the omission from the CPR of any element of compulsion and for the reluctance of case managers to impose it. The jurisdiction exists already: Rule 3.3 states: “Except where a rule or some other enactment provides otherwise, the court may exercise its powers on an application or of its own initiative.”
It needs no expensive court equipment for the court to make an order for the use of IT. The draft Practice Direction is only a draft, but it has much weight behind it and it, or something very like it, will probably be brought into effect this year. The courts do not need to wait to makes orders of the kind envisaged in the draft.
Don’t hold your breath waiting for the government to allocate funding commensurate with its promises and with the courts’ needs. But do expect an order of this nature to be made in a court near you, very soon.
Chris Dale is a solicitor, a consultant to Oxford Law and Computing Ltd, and one of the creators of the Openlaw Litigation Software. He was a litigation partner with a city firm for ten years and has spent the subsequent ten years engaged in litigation support.
