All posts tagged Cost Management Rules

Happy Anniversary, Jackson Reforms!

The Jackson Reforms

Anniversaries provide a chance for reflection. Whether it’s reminiscing about 40 years with a loved one or remembering that first kiss, reflection is always important. Why? We know intuitively that we learn from experience and from our mistakes so that we can improve ourselves and our relationships.

In a far less romantic setting, the world of edisclosure is celebrating the first anniversary of the Jackson reforms in civil litigation. Reflection was just as important at our breakfast seminar last week, jointly hosted with law firm Hill Dickinson LLP. The theme: what were the biggest impacts of the Jackson reforms a year on from implementation? An impressive panel included His Honour Judge Davies (Manchester Technology and Construction Court), His Honour Judge Bird (Manchester Mercantile Court), Damian Murphy (Barrister, Indicium Chambers) and Geraldine Ryan (Partner – Head of Commercial Litigation Hill Dickinson LLP).

First, the panellists were quick to concede the fact that early predictions on the biggest impacts of Jackson had not held true. Painful early cost budgeting and the handling of cost management in cases were favourites as hot topics a year ago.  Instead, the panel concluded that fear and uncertainty had crept in concerning sanctions for non-compliance with the new rules. Mitchell, of course, had a big part to play here and in reality what the panel have seen is an increase in, often hard-fought, applications for relief from sanction taking up the courts’ time.

Inevitably the discussion quickly moved to what has happened post-Mitchell, concluding that courts are continuing to take  a tougher line on compliance with the new rules. The Judges were satisfied that clear guidance had been provided from the Court of Appeal on how to handle Jackson and the overarching advice for lawyers was to keep on top of schedules, deadlines and more importantly if extensions are needed, to get requests for them in early.

That said, cost budgeting was still a strong topic for discussion and very much seen in a positive light. From the lawyers in the room we heard that cost budgeting brought attention and focus to their clients much earlier in litigation and a better understanding for what they were getting themselves into, especially when considering the methods and costs of disclosure. As a welcome result, the courts have seen an increase in mediation and will always encourage it in order to save on costs.

At last, one prediction that did come true, but was likened to predicting rain in Manchester, was that parties were unlikely to stray from standard disclosure. We have seen little evidence of parties using any of the other options in Jackson’s menu for disclosure. This might be a simple reluctance to change and the view that standard disclosure is the most appropriate method, or perhaps it’s the fear that ‘smoking gun’ evidence would be missed by using other options.

As first anniversaries go, this was certainly an exciting one. Was the intention of Lord Justice Jackson to instil fear and uncertainty into an already complex litigation process?  I think not; it was always the aim to provide direction and focus to the real issues of the case. We are still waiting for the dust to settle on the new rules, but like in any relationship there are bound to be ups and downs along the way.

We will shortly be launching the European version of ediscovery.com, which will have full coverage of all of the UK case law relevant to disclosure, from Mitchell and beyond, in addition to many other European ediscovery resources.  Stay tuned to this blog for more information on the site in coming weeks.

About Graham Jackson

As a Legal Consultant at Kroll Ontrack, I promote our computer forensic and ediscovery services to both corporate companies and law firms. This is to support any form of their electronic evidence needs, whether that is advising our clients to help prepare in advance of an electronic incident occurring, a real time incident such as data theft, or advise on the best course of action in dealing with post incident response to better protect against future occurrence.

Discovery, Disclosure or Both?

Budgets, Cost Management, new processes….is this train going to stop? Note that I didn’t say ‘gravy train’, as this is about understanding and better practices, and is not a money spinning exercise. Back to the point, the train shows no signs of slowing! We are still going through the evolutionary stages of implementation and understanding, although the perception is that we should all be fully competent by now.

Costs need to be looked at more closely, with the end client in mind and with a greater degree of openness. As a consequence, Budgets need to be prepared, discussed with clients and other parties, and ideally agreed upon at the onset of proceedings. In line with openness, these need to be followed closely and monitored by the parties, not only for the courts but also for their respective clients.  All of this makes good sense, not only from a client’s perspective but also one of judicial prudence. The Processes (procedures / protocols / disclosure options) are articulated in the CPR but the industry is still finding its way around them and how, when and where they should be carried out for best practice.

For the majority, the changes to our civil procedures are becoming old news, if not the minutiae of how to implement of them. Today I looked at one of my ‘Linkedin’ groups to find a full score of requests for the Precedent H document complemented by a host of negative comments.

Remove all the dos, musts, don’ts and shoulds and what you have left is a very simple message: start to think about discovery and disclosure very early on in the process (and that includes thinking about the volume of data that will be required or is available), and communicate clearly between the parties and clients participating in the budgeting process. These two things will make it much easier to deal with the costs issue generally.

It may not have escaped your astute observation that I mentioned discovery and disclosure not only in the same sentence but also as part of the same set of processes. This was deliberate. The use of these terms together may appear alien to some and  confusing. I would, however, “put it to the house” that we are developing a hybrid process under the new rules within the CPR, whereby we start early on with “Discovery” to show us what we have, in order to make the decisions as to costs, budgets and most appropriate process  for the client, followed by “Disclosure”, the review and identification of documents to be exchanged with the other parties and receipt of the same.

Reporting on Change

ReInvent Law London

My colleague Rob Jones delivered a six minute talk at Re-invent Law London, a novel crowd-sourced conference which took place in London on Friday 14 June.    His presentation “Wax Up, Not Wipe Out!”  was about seismic changes taking place in the legal profession.  According to Rob, “Change brought by technology is a wave and lawyers are like surfers out in the open waters. ‘Wiping Out’ (to fail) is an ever present risk that can lead to embarrassment or worse. It is better to ‘wax up’ the board and tackle the waves with enthusiasm and a little intelligence, to make sure that you stay on top of them”.    Rob’s talk was videoed and we will post a link to it soon.  For now suffice it to say that he looked into the crystal ball at a world driven by technology where justice will perhaps be obtained from the cloud through an app available on your tablet. He also looked at the tsunami of information surrounding us and how to extract meaning from it in legal disputes using new technologies like Technology Assisted Review.  Recognising that justice comes at a cost and the legal system is creaking and groaning under its own weight, Rob spoke about smart computers rescuing the situation by allowing leanness, efficiency and case winning power to enter the legal process. Referring to our experience using TAR on over 250 projects, Rob said that the computer is already looking over the shoulders of humans to build intelligence and suggested that it may not be long before similar algorithms are used to create a legal super brain that can predict outcomes, forecast fees and aid strategic decision making which could turn human lawyers into formidable competitors and opponents.

If you would like to read more about the event you can use the following hashtag on Twitter #ReInventLaw.

#ReInvent Law London

We found it to be a very refreshing conference with stimulating content and very high calibre of speakers on law and technology disciplines.

The Not So New Rules of Court

In the two months since the changes to the rules of court governing disclosure and cost management in litigation there have been no reported cases and very few anecdotal reports about how the new rules are affecting cases.  At this stage it seems that there are still more questions than answers about how cost management, proportionality and tailor-made disclosure will play out in practice.  We have been tracking the changes closely and have hosted two seminars on the impact of the new rules for the legal community in London and Manchester.  These enlightening panel discussions have involved members of the judiciary, experts from legal practice, and providers of disclosure-related services.  We have prepared a detailed note The Jackson Reforms on Disclosure and Costs Management:  FAQ, on some of the key questions lawyers are asking about the new rules along with insights we have gained about them.

As Mark Surguy, a partner at Eversheds and a respected voice on edisclosure recently pointed out, the weighing up of options, solutions and costs is a best practice approach to any dispute.  With that approach in mind, the new reforms should not present any client, lawyer or technology service provider with any difficulty.  Judge Waksman echoed this sentiment when he said in Manchester that there is no need for litigators to be afraid of the changes.  By far the best tactic according to Mark will be to get to the heart of a case quickly, using technology so that the client can understand the prospects of success and make the right decisions about settlement or further investment in the litigation.

On a Company Note

On the topic of change, we have seen some ourselves recently at Kroll Ontrack. Tim Phillips, has been appointed as the new Managing Director for our Legal Technologies business. Tim has been with us at Kroll Ontrack since 2007, serving as Sales Director for the European Region.  As MD, he will have responsibility for operations and business development throughout EMEA, reporting to Dean Hager, president and CEO of Kroll Ontrack.  Tim says, “I’m delighted to take on this new role. In the EMEA region, we are focused on steady growth and development geographically and in terms of new products and services to specifically address data privacy requirements.  Our vision is to leverage the extensive European footprint we have through our existing facilities to provide a full suite of electronic evidence handling software and services to our clients across the region. Our focus in EMEA integrates well with Kroll Ontrack’s broader strategy to help companies manage edisclosure strategically by making it a repeatable process that is managed at a portfolio level, not just at the one-off project level.”

About Tracey Stretton

Tracey Stretton is a legal Consultant at Kroll Ontrack in the UK. Her role is to advise lawyers and their clients on the use of technology in legal practice. Her experience in legal technologies has evolved from exposure to its use as a lawyer and consultant on a large number of cases in a variety of international jurisdictions.

Civil Justice Reforms Breakfast Seminar

Yesterday morning Kroll Ontrack hosted a breakfast seminar in Manchester in conjunction with the law firm Hill Dickinson LLP. We heard His Honour Judge Waksman QC (Manchester Mercantile Court) and His Honour Judge Davies (Manchester Technology and Construction Court) share their views on the impact of the cost management and disclosure aspects of the Jackson Reforms in their courts.

We discussed what impact the changes have had a month and a half into the period since implementation to compare experiences and to get an understanding of the types of orders judges are handing down.

Interestingly, the judges agreed that despite the menu of disclosure options now available to litigants, standard disclosure would still be the appropriate order in most cases. Rather than changing the type of disclosure order, Judge Davies said, the Court would take an active role specifying the extent of the search that should be carried out.   Judge Waksman stressed that the Disclosure Report was not intended to be a document that practitioners need to labour over, and a high level list of the classes of documents available will suffice.

Budgeting for standard disclosure on the Disclosure Report provides a bench mark upon which the approach to disclosure can be agreed by the parties and this is all that is required. Whilst there is a menu of disclosure options, there is no need to submit a menu of costs!

In relation to cost management, Judge Waksman said that the new rules do not represent a great watershed, pointing to the fact that the cost management pilot had helped to embed cultural change.

We discussed how there is real value in examining each party’s budget in order to be well prepared and ensure that the Case Management Conference is a meaningful exercise. Advance planning will pay dividends.

The court will not simply approve all directions that have been agreed by parties, but take an active role as cost management feeds into case management. Nevertheless, it is not intended that the examination of budgets will be a ‘gargantuan exercise’ nor a detailed assessment of costs. Judge Waksman expects that in his court these discussions will add an extra 10 minutes to the CMC, or 20 minutes if more complex and that in very many cases, the budget will be approved with few changes if any.

Kroll Ontrack led a discussion with panelists – Hudson Legal’s Tom Moore and the head of Hill Dickinson LLP’s litigation practice, Geraldine Ryan – to recommend the best ways to approach budgeting and disclosure in this environment.

The new rules place emphasis on early preparation and getting to grips with the likely challenges ahead. Working together it is possible to make logical decisions and apply the best technologies to evaluate risk, decide the optimum strategy and control costs.   As Judge Waksman pointed out in his closing comments there is no need for litigators to be afraid of the changes.

Daniel Kavan and Rob Jones would like to thank Judge Waksman and Judge Davies, Hill Dickinson LLP and our managed review partner Hudson Legal for helping us put together an enlightening seminar particularly relevant for Manchester litigators and their clients.

About Daniel Kavan

Daniel Kavan leads Kroll Ontrack’s Electronic Evidence Consultancy team in Europe. He and his team of experts advise lawyers and their clients on how to manage and analyse evidence from emails and other electronically-stored documents in legal matters including litigation, arbitration, internal audits and regulatory investigations.

We Put the Pieces Together

This month marked the implementation of the Jackson Reforms. To help combat confusion within the legal community as to how the new civil procedure rules arising out of these reforms will work, we gathered up some of London’s leading litigation experts and thrashed out the key issues on cost management and disclosure in a breakfast seminar at Lincoln’s Inn.

The breakfast was extremely well attended, showing the legal community’s interest in the subject and in the esteemed panel which consisted of the court’s own Senior Master Steven Whitaker, Pinsent Masons’ litigation expert Andrew Herring, Hudson Legal’s director of managed review, Tom Moore, and Kroll Ontrack legal technology expert Rob Jones.

The Senior Master made it clear from the start that non-compliance with the rules would not be tolerated by the courts and sanctions could be expected. In this context we debated how the rules might work.

The panel agreed that standard disclosure would be less frequent, with parties more likely to simply disclose the documents they rely upon, and potentially provide further issue-based disclosure. Even though disclosure on this basis could be rather limited, the panellists didn’t think this means the end of the E-Disclosure industry. Rather, as Rob put it, a coming of age, where Legal Technology providers would be able to provide proper, strategic advice to practitioners carefully planning their disclosure exercises ahead of time.

ED providers would also be able to help with cost budgeting, which is now a requirement under the rules. Although the requirement to file a budget only applies to some cases, the need to budget for the disclosure exercise on the Disclosure Report (the form for which we unveiled at the seminar) would apply to most.

Listening to Andrew speak, it made me realise that these changes would clearly have an impact on litigators, but that actually many of the required behaviours are what good solicitors are already doing under the current regime.

You can listen to a recording of the whole seminar here:

I would like to personally thank the panellists, who helped me structure the session to focus on the aspects that mattered most to practitioners, and provided a lively discussion on the day.

About Daniel Kavan

Daniel Kavan leads Kroll Ontrack’s Electronic Evidence Consultancy team in Europe. He and his team of experts advise lawyers and their clients on how to manage and analyse evidence from emails and other electronically-stored documents in legal matters including litigation, arbitration, internal audits and regulatory investigations.

One Month Today: Getting Ready for Jackson’s Civil Procedure Reforms

Last week we posted an update outlining all the latest details of the new costs management rules and the e-disclosure menu of options coming into effect this Easter in England and Wales. The legal community has had mixed reactions to these changes, which are only a few weeks away and constitute a significant part of the implementation of the recommendations in the Jackson Review.  A quick Twitter search for hash tag #jacksonreforms  shows plenty of debate about the implementation.  Law costs draftsperson Timothy Phillips tweets, “the Jackson Reforms would be as easy to master (but more fun!) if they were published in jigsaw format.”

The Law Society Gazette reported that litigators think that the Ministry of Justice’s handling of new rules to support the reforms as ‘shambolic’ and ‘deeply concerning,’ not leaving enough time for practitioners to prepare.  But the Government has pushed back, and as PLC reported, it rejected calls to delay implementation.  Last minute changes to the amended rules which have exempted large-scale cases from cost management have had some wondering whether this should be the case.

But it’s not all doom and gloom. Some of the changes will provide more flexibility in the way litigation is carried out. For example, rather than standard disclosure burdening parties in litigation, the court will decide whether to dispense with or limit disclosure, or any other order the court considers appropriate.  An analysis of the implications on practice, by my colleagues Tracey Stretton and James Morrey-Jones in conjunction with Eversheds Partner Mark Surguy, was recently published by the Society of Computers & Law. It also suggests some great ideas about how cutting edge technology could be used to do disclosure upside down, by handing the keys to the warehouse to the other side and jointly training a machine learning system on what kind of documents are relevant, and then letting the computer sort through the warehouse and decide what’s relevant and what’s not.

The rule change certainly provides an opportunity to think about litigation and disclosure with a fresh mind. To that end, on Thursday morning, March 21st, I will be hosting a breakfast seminar at which Senior Master Steven Whitaker will look at what has changed and why and what the implications might be on a panel with Pinsent Masons’ edisclosure expert Andrew Herring, Hudson Legal’s Director of edisclosure Tom Moore, and Kroll Ontrack’s Rob Jones.  I would encourage you to come along, enjoy breakfast on me, and contribute to the debate or listen to what the experts have to say. You can find all the details and register here.

What’s your reaction to the reforms? Please comment below.

About Daniel Kavan

Daniel Kavan leads Kroll Ontrack’s Electronic Evidence Consultancy team in Europe. He and his team of experts advise lawyers and their clients on how to manage and analyse evidence from emails and other electronically-stored documents in legal matters including litigation, arbitration, internal audits and regulatory investigations.

All Change! Are You Ready? – The New Cost Management Rules

Cost Management Rules

The way in which litigation costs are managed is about to fundamentally change in the UK. From 1 April 2013 new costs management rules will require litigants to prepare and exchange litigation budgets before the first case management conference. The courts will thereafter approve and actively manage cases within the parameters of these budgets.

Which Cases Will Be Affected?

The new regime was initially going to apply to cases in various courts across England and Wales except for cases in the Commercial Court.

In a statutory instrument laid before parliament on 12 February the new rules were set to apply to all multi-track cases commenced on or after 1 April 2013 in a county court or the Chancery Division or Queen’s Bench Division of the High Court (except the Admiralty and Commercial Courts), unless the proceedings are the subject of fixed costs or scale costs or the court otherwise orders.

See http://www.legislation.gov.uk/uksi/2013/262/made

In a last minute change to the rules announced on 21 February high value cases worth more than £2 million will also now be exempt from the new cost management regime unless the court so orders.

http://www.judiciary.gov.uk/JCO%2fDocuments%2fPractice+Directions%2fcosts-budgeting-announcement-draft-direction-cpr-rule-3-12.pdf

This means that cases before the Chancery Division, Technology and Construction Court (TCC) and Mercantile Courts, worth more than £2 million will not be subject to automatic cost management.

As is normally the case, the Courts have retained the discretion to apply the new regime to “any other proceedings where the court so orders”. A Court might therefore embark on active costs management as part of case management and order budgets to be prepared. Of course, a budget is not something that can be put together on the back of envelope, so there is some advantage to being prepared ahead of time.

How Will the New Rules Affect Your Cases?

If the new regime does apply to a case then only costs that have been budgeted for and approved by the court will be recovered at the end of a case. The Courts have indicated in early case law that they will not depart from the budget without good reason (Sylvia Henry v News Group Newspapers Ltd [2013] EWCA Civ 19). Costs will need to be tracked accurately and budgets will need to be living documents that are kept up to date.

The key concept underpinning the change is that of proportionality when it comes to litigation costs and this is now made clear in the overriding objectives of the rules. Even costs that are reasonably or necessarily incurred might not be recoverable if they are out of proportion to the value of the claim or the issues at stake in a case. You will therefore need to focus more on costs from the outset of a case, particularly on the relationship between the estimated costs of running the case and the most likely ultimate recovery at the end, and shape your litigation strategy around an informed cost/benefit analysis.

What About Disclosure?

In order to budget effectively, you will need to consider and quantify disclosure requirements early on in the life of a case rather than leaving it to the last minute, which tends to be the current practice. Importantly, you will need to focus on the scope or extent of the disclosure exercise from the outset because that will shape the cost of the exercise which follows. That is where the new CPR rule 31.5 comes into the picture. It applies to all cases (except for personal injury cases) and requires that:

  • no less than fourteen days before the first case management conference each party must file and serve a serve a report verified by a statement of truth, describing what documents exist, how and where they are located and stored and estimating the broad range of standard disclosure costs.
  • not less than seven days before the first case management conference, parties must agree a proposal in relation to disclosure.
  • a new menu of disclosure options will allow the courts the flexibility to adopt a far more tailored approach in substantial cases. This includes limiting the exchange of documents to those related to specific issues only or other novel approaches such as simply handing over the “keys to the warehouse” and allowing the other side to find the documents they need.

What Now?

Even before their introduction, the anticipated changes to the CPR are already being changed. There is no doubt, however, that we are entering a new era of cost management in litigation and that cases will require a greater degree of management from the outset. The need to file a report and cost estimate on disclosure is still a fundamental change even if the need to file case budgets under the cost management rules has been restricted. Technical expertise is likely to be very helpful as approaches to edisclosure are designed and costed. Innovative technologies and techniques such as Technology Assisted Review and outsourced review can reduce the burden and cost of disclosure and these have a role to play in reaching the goal of proportionality. We are primed and ready to help you when the new rules are implemented.

About Tracey Stretton

Tracey Stretton is a legal Consultant at Kroll Ontrack in the UK. Her role is to advise lawyers and their clients on the use of technology in legal practice. Her experience in legal technologies has evolved from exposure to its use as a lawyer and consultant on a large number of cases in a variety of international jurisdictions.