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IT for Disclosure?
Parent page(s): Home Introduction IT for Disclosure?
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Co-Operative Litigation replaces Adversarial Litigation An idealist might think that the common aim in litigation - to get the action settled or into Court as quickly and cheaply as possible - might be better served by exchanging the neutral disclosable material in a form which both parties can use. Only an idealist, perhaps, might think that this ever was the aim of those involved in litigation. Pre-Woolf, the English legal system did not encourage parties to co-operate in order to avoid duplication of costs. The adversarial system made parties reluctant to share any advantage which they could gain by being able to deploy resources which the other side may lack. Quite apart from any ulterior motive on the part of the lawyers, there were and still are sometimes good reasons why a client's interests are best served by the longest, slowest and most costly route to trial. The courts, faced with public criticism of the expense and delay involved in litigation, sought to persuade, and then to force, parties to litigation to co-operate. The Official Referee's Court (now the Technology and Construction Court) was the first to put pressure on parties in this way, largely through the personal initiative of His Honour Judge Peter Bowsher QC. The 1992 ORSA Protocol, a voluntary code for encouraging common standards for data exchange, derived its name from the Official Referees Solicitors Association. The Commercial Court followed. Relatively few lawyers practice in these elevated Courts, and few then had the equipment or technical knowledge to exchange data anyway. An attempt was made both to democratise the notion of data exchange and to move towards making it compulsory by a 1993 amendment to O66 RSC which entitled parties to obtain electronic copies of documents if they existed in electronic form (S.I 1993 No. 2133). The amendment suffered both from hazy drafting and from its accidental omission from the 1995 White Book, but it was a significant move towards the idea that the courts would impose co-operation on unwilling parties. And so to Lord Woolf. Litigation, he said, will become less adversarial and more co-operative. The listing process is now Disclosure and the obligations have changed. More importantly, the climate has changed. That which was treason ten years ago, and encouraged five years ago, will become compulsory. The better lawyers will find this co-operative approach a challenge, rather than a burden - the challenge being not merely to meet the new requirements, but to do so profitably. "Better" in this context does not necessarily mean bigger. Just as the changes in the Rules have spread from the higher courts to all of them, so technology has become democratised. The cost of delivering suitable equipment to every fee earner is still high, but it is a great deal cheaper than it was five years ago and continues to fall. If one accepts the principle that everyone involved has a common interest in getting through the litigation quickly and efficiently (and that they will be compelled to do so if they lack the interest) then sharing the neutral, common information with the other side is a logical step. This need not derogate from whatever tactical play the rules allow, nor undermine the aggressive pursuit of the client's interests, but it should allow more energy to be spent on this than on the dreary mechanics of listing and re-listing. After all, the loser will have to pick up his opponent's costs anyway and has always had that contingent interest in ensuring that the costs are kept to a minimum. The new extensions to this principle codify and enhance the burden on all parties, and their lawyers, to keep the costs down - "The courts" says Woolf "will be able to give effect to their disapproval of a lack of co-operation". In plain English - "Keep the costs down or pay them yourself". Chris Dale Chris has been working on litigation support software for over 10 years. The software is marketed under the name Openlaw. Openlaw is low cost litigation support software, priced by the matter, designed to help litigators meet their post-Woolf obligations in the most cost-effective manner. |
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