Yesterday evening the Construction Projects Knowledge Management Association invited Mr Justice Ramsey to speak to members and their guests at Keating Chambers. The topic for discussion was the impact of the electronic age on documentation, in terms of:
- E-disclosure problems and solutions.
- E-working in the TCC.
Both the topics pre-date the Jackson report and much has been written about them. That said, there remains a tendency for practitioners to view them as reforms for the future, rather than part and parcel of the here and now.
It was particularly interesting to get the Judge in Charge of the TCC’s take on things.
The message on e-disclosure was clear. The current rules relating to disclosure of documents were fashioned from about the 1870’s onwards and the majority of the “records” in cases these days are electronic communications, which do not respond well to being forced into the traditional approach to disclosure and the requirements of CPR Part 31.
The traditional approach just does not work on all levels, whether practically, in terms of the search undertaken or on the question of costs incurred in completing the exercise. Hence we have the new draft Practice Direction on Electronic Disclosure and a disclosure questionnaire. The questionnaire is already being used in many cases, but Mr Justice Ramsey’s view was the practice direction and its questionnaire are unlikely to be formally in place until next year, as the Civil Procedure Rules Committee continues to grapple with its final wording.
That said, as practitioners we should not sit and wait, every TCC case brings with it a huge volume of e-disclosure and we need to grapple with the problems this presents now. For example:
- What is the scope of reasonable search: people, time period, sources?
- How will the search be carried out: privilege, relevance, key words?
- Will there be a “layered” approach, limiting the initial searches to specific names and dates?
- Is metadata needed?
- Is the limit of standard disclosure necessary?
- How will documents be disclosed?
- Will a party be using a proprietary data management system?
In terms of solutions Mr Justice Ramsey identified the following as key:
- The need to control the process, both in terms of cost and benefit.
- Sequential disclosure: the layered or staged approach.
- Management of the process: the role of the court and the need for expert assistance.
In doing so, he threw out some challenging questions. Is it really proportionate in terms of cost to be forever chasing the “smoking gun”. Is it really likely that such a document exists? Rather, in the TCC we need an approach that is completely different to standard disclosure. He recommends a layered approach and suggests that, in many cases, a court order limiting disclosure to communications between two or three key people over a period of two or so months should be the starting point. The court and the parties can then see what this brings. Invariably, the initial order will be sufficient or at least focus minds as to where next to take the search.
Do we really need to exclude privileged documents from inspection? When dealing with huge quantities of e-disclosure, the task of identifying privileged documents is vast and relies to a large extent on arbitrary key word filtering. Would it not be a better to simply agree at solicitor level that no reliance will be placed on such documents?
The e-disclosure questionnaire is a management tool that should enable us to find the solutions and address these challenges.
Describing Practice Direction 5(C) (which deals with e-working) as being in parts impenetrable and in parts enlightening, Mr Justice Ramsey reminded us that when the TCC makes its move to the Rolls Building in 2011, the aim is that all court proceedings will be started electronically, with fees paid online.
As things currently stand the claimant has the option of “going electronic” and, although the uptake has been on the slow side, we were told that in one month the TCC saw 25% of claims issued electronically.
Since the pilot began on 20 July 2009, the TCC has been busy scanning all court documents where claims have been started in the traditional way, so that they can be continued electronically. Those of us acting for defendants should not be discouraged if our client faces a claim issued in the old way. Instead, we should contact the court to get the relevant code and links so that our client, at least, keeps on the right side of their appointed judge and files its own documents online.
The message from the TCC is very much that this is not a proposal for the future: it is now. Although, still wrangling with problems over online payment (Paypal v Barclaycard), we were told that online payment should be up and running by mid July.
We were sold the virtues of the online case reader and the huge benefits, not only to the parties’ lawyers but also to the judge, of being able to log on after hours and access all of the court documents (including skeleton arguments) in “apple pie order”.
The challenge for the courts is to get from 25% to 100%. Apparently Singapore is at the forefront of e-working and the government there has taken a hard-line approach, saying that no solicitor is allowed to issue proceedings on paper and that only litigants in person can do so, and even then the documents are scanned while they wait in the court office.
There is no indication from Mr Justice Ramsey that such measures will be adopted here, although there are discussions about the possibility of lower fees for claims that are started online. By and large it is hoped that court users will see the obvious benefits of e-working and embrace it voluntarily. Mr Justice Ramsey was quick to point out that the procedure is very simple, painting a picture of an insomniac solicitor logging on at 3am, obtaining the form, N1(TTC) by emailing firstname.lastname@example.org, receiving it within minutes, completing it online, sending it to email@example.com and receiving the issued and sealed claim form by return. The process was likened to your first ever online flight booking; you never really feel comfortable that the process has worked until the plane takes off, but once you have done it a few times, you never look back.