eDisclosure and the Jackson Review
Those involved in civil litigation will no doubt now know about Lord Justice Jackson‘s review of civil litigation costs which began in 2010. The purpose of the review was to identify a way to bring greater cost certainty to litigious parties, as well as to better equip courts to play an active role in managing costs. You may also know that as a result of that review, a number of changes will be made to the litigation process, with new provisions to come into force on 1st April 2013.
These new provisions will apply at the court’s discretion to all multi-track cases (except those in Admiralty and Commercial Courts) started on or after 1 April 2013. The Civil Procedure (Amendment) Rules 2013, which were published earlier this week, formalised a number of the changes proposed by the Jackson report. Among other things, they incorporate significant changes to the way parties conduct disclosure with the aim of promoting access to justice and fairness at a cost that is proportionate to the value of the claim.
This is not intended to be a comprehensive guide of the new provisions being brought in by the Amended Civil Procedure Rules. Instead, it seeks to draw to attention those parts which may have the greatest impact on the eDisclosure process and on litigation support companies like Altlaw.
The new eDisclosure and Case Management regime
The main things to note are the introduction of:
- An increased weight placed on pre-trial discussions on disclosure
- The ‘Menu option’
The introduction of costs budgets is intended to ensure that costs are addressed at the earliest stage possible, rather than the current norm of assessing costs ‘after the event’. The idea being that, by placing cost at the centre of the litigation process, parties will be forced to pay greater attention to ensuring efficient litigation throughout the process. Costs budgets will effectively allow the court to manage the parties’ costs as if the case were a commercial project, with costs being estimated and analysed from the outset.
Parties will be expected to submit costs breakdowns, or so called ‘litigation budgets’ for assessment by the court. The level of detail is such that breakdowns will be divided into headings which relate to all the ‘phases’ of litigation.
After analysis, the court will then state the extent to which the budget is approved. It will do so by taking into account the total figure estimated for each phase of the proceedings and taking into account the extent to which they are considered to be reasonable and proportionate costs. This will be measured by a number of factors, including: the value of the claim; the complexity of the litigation; the conduct of the paying party; and any wider factors, such as the public importance.
Importantly, the court will then be expected to, so far as is possible, actively manage the case so that it proceeds within the approved budget, for example by holding ‘Costs management conferences’ and issuing directions. At the end of the litigation, the recoverable costs of the winning party will then be assessed in accordance with the approved budget, meaning that the issue of costs will form an integral part of all aspects of the litigation process.
Increased importance of inter-party discussions on Disclosure and the ‘Menu Option’
The existing rules on disclosure meant that the default position was that ‘standard disclosure’ would usually be ordered. This was a naturally time consuming process, given that this meant a lawyer was required to review all documents gathered in a reasonable search before handing them over to the opposition party. The new position, essentially removes the presumption that standard disclosure should be the default, replacing it instead with a ‘menu’ of options for disclosure. This means that the Court has a number of discretionary options, ranging from issuing an order dispensing with disclosure altogether, to requiring any specific disclosure that it deems appropriate. In other words, the Court can tailor a disclosure plan to fit the specific needs of a case and can even provide direction on particular searches for documents, the phasing of disclosure in different stages, and the formats for disclosing documents.
Case management conferences are also going to become much more significant and ‘real’ events, with the new rules emphasising the importance of early and efficient disclosure, as well as with parties being expected to undertake greater inter-party co-operation on disclosure matters. Parties will now be expected to file a report 14 days before a case management conference stating:
- the documents that exist;
- where they may be located;
- an estimate the broad range of costs;
- which directions are sought.
The parties are also expected to meet 7 days before the conference to discuss and agree an appropriate proposal in relation to disclosure. This is intended to ensure that the parties focus on the facts, expert evidence and that they only disclose documents which pertain to the real issues involved in the matter.
Conclusions and Impact on Litigation Support Companies
Given that the Civil Procedure Rules Amendment has only just been announced and that we must wait until April 2013 for the new provisions to come into force, we are going to have to wait and see what the true impact is on litigation support companies. We can fairly accurately make some early presumptions.
In relation to costs budgets, parties to litigation are going to have to be substantially more conscious of their costs at every stage of proceedings. Failure to provide, exchange and ultimately keep to both reasonable and accurate budgets will lead to a very effective stick for the opposition to use when making arguments as to costs. Naturally this will mean parties to litigation will need much more specific cost breakdowns at each and every stage of proceedings, including importantly before proceedings begin. Further regular cost reviews will be necessary, putting greater pressure on litigation support companies to provide up to the minute records of work that has been completed, the cost to date and the anticipated costs.
The greater emphasis on inter-party discussion and agreement on disclosure matters will also have a big impact on litigation support companies. With the greater focus, parties to litigation will inevitably be expected to understand much more about the disclosure process and the technology used therein. They will need to pay greater attention and time to sifting documents, with the aim of avoiding unnecessary disclosure. To avoid the inevitable increase in workload at an early stage under time pressure, there will naturally be an impact on the requirement for early case assessment which will be passed on to ECA vendors.
Litigation support companies need to be ready for the increased scrutiny that will come their way and will need to adapt to increasingly regular intervention from lawyers. As for the full impact, we will have to see what April 2013 brings us…
A summary of the new rules courtesy of James Morrey-Jones, Tracey Stretton & Mark Surguy http://www.scl.org/site.aspx?i=ed30465
The new regime requires the following:
1. Within 28 days after the service of the defence, all parties, except litigants in person, will be required to file and exchange budgets as required by a new practice direction.
2. 14 days before the first Case Management Conference, each party must file and serve a report, verified by a statement of truth, which:
a. states what documents exist or may exist or may be relevant to the case;
b. describes where and with whom those documents are or may be located;
c. estimates the broad range of costs that could be involved in giving Standard Disclosure, including costs to search and disclose electronically stored documents; and
d. states which of the menu options the party is seeking under the new CPR, r 31.5(4) and how it is expected disclosure should be carried out under the new r 31.5(5).
3. Not less than 7 days before the first CMC, the parties must discuss and seek agreement on proposals for disclosure that meet the overriding objective.
Further requirements may emerge as a result of directions by the court or agreements reached at the CMC.