UK High Court approves use of Predictive Coding in litigation

Last week legal technology providers in the UK had a lot to celebrate as the English High Court approved the use of predictive coding for disclosure in litigation.

The judgement, handed down by Master Matthews, gave official judicial authorisation for the use of predictive coding in High Court proceedings. Summing up his decision, Master Matthews stated that predictive coding is just as accurate, if not more so than a manual review using keyword searches. He also estimated that predictive coding would offer significant cost savings in this particular case and that the possible disclosure of over 3 million documents done via traditional manual review would be disproportionate and ‘unreasonable’.

To read the judgement in full, please click here.

How does predictive coding work?

Predictive coding is an advanced machine-learning technology which allows computers to predict how documents should be coded (i.e., should a document be tagged ‘responsive’ or ‘privileged’) based on decisions made by human subject matter experts. Put simply, an experienced lawyer trains the computer by coding a sample set of documents, and the computer then learns what to look for based on this training. In the context of edisclosure and other investigative exercises involving electronic evidence, this technology can find key documents faster and with fewer human reviewers, thereby saving on cost and review time.

Who uses predictive coding?

Other jurisdictions, such as the USA and Ireland, have led the way in giving judicial approval to predictive coding, and the UK judgement references these cases in detail. Despite these cases as well as the ever-increasing sophistication of the technology itself, the UK law community has been somewhat reluctant to make use of the technology, as explored in this study by Kroll Ontrack Legal Consultant and former litigation lawyer, Hitesh Chowdhry.

In Chowdhry’s white paper, ‘Rage Against the Machine; Attitudes to Predictive Coding Amongst UK Lawyers’, he notes that his study revealed that the main barriers to adopting predictive coding technology were:

  • Risk aversion and mistrust of the technology’s accuracy
  • Belief that predictive coding would have a negative effect on revenue
  • Satisfaction with existing methods and a belief that existing practices offered more accuracy than studies have suggested
  • Insufficient understanding and knowledge of the complex predictive coding process
  • Diffusion amongst professionals

The UK judgement counters much of the fears uncovered in Chowdhry’s study by stating that the technology is accurate and offers cost savings.

Predictive coding and the Civil Procedure Rules

As data volumes continue to grow and traditional manual reviews using keyword searches become less feasible, predictive coding may be the best path toward complying with the Civil Procedure Rules.

Jeff Shapiro, a lawyer who has written frequently on costs in edisclosure, offered this comment:  “The judgementapproving predictive coding for the disclosure of documents highlights the judiciary’s continued march to proportionate costs in litigation via application of the overriding objective. Review amounts to approximately 70% of total disclosure costs. With the ubiquity of electronic document creation and storage, litigators have an ever-increasing costs’ burden in order to fulfil their CPR disclosure obligations. The judiciary, recognising the realities of modern disclosure where millions upon millions of documents may need ‘to be considered for relevance and possible disclosure’, has proclaimed that predictive coding may be used as a substitute for manual review.”

The cost savings offered by predictive coding will undoubtedly be popular with clients and potentially will give a competitive edge in winning work.

We hope that this judgement will encourage more UK firms to take advantage of the benefits offered by predictive coding.

For more information about this technology, please click here.

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