It seemed as if everything was up for discussion at the TeCSA and TECBAR symposium which BLP hosted last Monday evening. The ever impressive line up of speakers included Ramsey J and Akenhead J, to present talks on the theme of the interventionist judge and better case management.
The slight irony of the evening seemed to be that, as Akenhead J suggested during his address, good case management is often viewed as being when the judge does not have to intervene to any great extent. An interventionist approach would only be called for when the parties themselves could not agree the way forward on case management.
The key issue, that I took away from the symposium, was the notion of programming and running a piece of litigation as a project, in much the same way as a construction project. This is not perhaps a new concept, but one that is gaining increased focus when considered against the back drop of costs management and a contemporary view of case management.
Of course, to apply fundamental project management principles to litigation raises the question of “who is the project manager?”. When all the parties involved in litigation are taken into consideration, this question does not seem to have a straightforward answer! Notwithstanding the discussions around the role of the interventionist judge, the message from the Bench was clear: the judge is not the project manager.
What did seem to be agreed was that, whoever takes on the role of project managing complex construction litigation, will have some significant challenges to grapple with. Over and above the much discussed issue of cost management (that permeates all aspects of litigation), these challenges largely coincide with the main pinch points in the litigation process:
- Witness evidence.
- Expert evidence.
Disclosure is, and will remain, an important area for the project manager as it is usually the largest component in litigation, both in terms of time and cost.
Revision of CPR Part 31.5 will provide for different types of disclosure to be ordered by the courts, although they already have wide powers to determine what is appropriate. This could range from none at all to standard disclosure of all relevant documents as it exists currently. The key consideration, as emphasised by Ramsey J, will be proportionality. He suggested that a “key to the warehouse” approach could be taken, in order to reduce unnecessary cost, whereby one party is given access to all the other parties documents to search for any relevant material.
There appeared to be some concern amongst the audience about moving to this approach, particularly when it came to protecting privileged documents. This was reflected by some of the questions from the floor.
Ramsey J clarified his thoughts by suggesting approaches that could offer protection, including:
- Keyword searches to find and remove privileged material.
- The solicitor’s conduct rules, which provide for the inadvertent disclosure of privileged documents.
- The possibility of the parties in the case developing a protocol in order to manage this process, perhaps agreeing to ignore any privileged material that is included in the documents inspected.
I am not sure that the “project managers” in the audience were necessarily persuaded to move away from the current, more cautious approach of ring-fencing privileged documents.
Again, with witness evidence, the key test is proportionality. As one would expect, the project manager will need to consider, at the start of a case, the number of witnesses needed and the full extent of the issues that they can talk about.
It was suggested that parties may need to move away from trying to reinforce a case by providing essentially the same evidence from multiple witnesses, as these costs are unlikely to be approved by the court in the costs budget. It may also be that there is less live witness evidence required at trial, as was suggested by Master of the Rolls, Lord Neuberger earlier this year. One of the speakers, Fiona Parkin QC, saw this as an indication that courts may move away from live evidence in the near future.
Less live evidence could be an interesting development, but it raises two issues:
- It may actually increase the costs of documentary witness evidence and disclosure. If lawyers are aware that a witness is not going to be cross examined, they may spend more time (and expense) seeking to find contradictory evidence through disclosure or a more in-depth document review.
- It may result in a reallocation of the live evidence costs within different phases of costs budgets, rather than achieving an overall reduction in costs.
It was highlighted that care will need to be taken in using expert evidence. An assessment should be made on whether an expert needs to address all the issues in a case and what the costs of doing this will be. The project manager should ensure that counsel and experts are involved early to help determine the extent of the expert evidence required.
An interesting development in this area may be how expert evidence is procured when viewed in terms of cost management. There could be a move towards tendering for expert evidence, whereby several experts are considered and selected not simply on their expertise but on their cost and the future recoverability of this within a costs budget. This would have wide ranging implications for both lawyers and experts.
Learning from our clients
Overall, the evening provided much food for thought and several challenges to take away, particularly for the “lawyer/project managers”. It remains to be seen how project management will be embraced in complex litigation cases. The answer as to who will be the project manager in these cases seems to be the solicitors, with intervention by judges only when actions cannot be agreed between the parties. This lays down a new challenge for litigation lawyers.
In meeting this, we may need to adopt some of the project management practices that our construction clients routinely use to deliver against deadlines, within tightly controlled and scrutinised budgets. Perhaps we can look to our clients for training and tips. But in doing this, we should focus on the success stories where things have gone right, which may make for a refreshing change, instead of pouring over where a project has gone wrong and ended up in a dispute!