All posts tagged Jackson Review

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.

The Jackson Five

Last week I had the pleasure of attending the Commercial Litigation Association Manchester Regional Seminar entitled “After the Revolution whither Napoleon?” I was there as a panelist alongside His Honour Judge Bird of the Manchester Mercantile Court.

His Honour made it clear that the Manchester Mercantile Judiciary respects the local legal practice and is willing to listen.

“We appreciate that there are areas of litigation, especially disclosure, which we have not dealt with,” he said. “We have the parameters of proportionality, but if you tell us it will take a certain amount of time, we will listen to you. We have a great deal of regard for the way solicitors do things in this city.”

Civil Procedure Rule 44.3(5) provides for five factors by which to determine the proportionality of costs. According to HHJ Bird, these have been affectionately described by some litigators as the “Jackson Five”:

(5) Costs incurred are proportionate if they bear a reasonable relationship to:
(a) the sums in issue in the proceedings;
(b) the value of any non-monetary relief in issue in the proceedings;
(c) the complexity of the litigation;
(d) any additional work generated by the conduct of the paying party; and
(e) any wider factors involved in the proceedings, such as reputation or public importance.

Judge BirdHis Honour said that judges would take seriously any new rules arising out of the implementation of the Jackson Reforms. “We now have 1.5 Mercantile judges in Manchester. Judicial resource is scarce.” He said that this necessarily impacts the way judges will look at things and that he is committed to making sure that the Jackson Reforms are effective. He went on to say , “the Judiciary has a big part to play in ensuring the Jackson Reforms work. The local practitioners have a great deal of responsibility as well.” In terms of cost budgeting, hopefully lawyers will not need to seek help of the Court most of the time: “Our hope is that costs budgets will be agreed. Once they are agreed, there is not much we can do.”

Revolutionary? Perhaps not but nevertheless fascinating. Despite not being the official opinion of the Court, it is always interesting to hear the opinions of individual judges. In addition to HHJ Bird, I would like to thank Tony Guise and Mark Beaumont of the Commercial Litigation Association for organising the event and leading the panel discussion, and Jeff Lewis, head of litigation in the Manchester office of Brabners for hosting the event and contributing his views as the President of the Manchester Law Society Council and Deputy District Judge.

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.

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.

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.