The proposed new Practice Direction and Court Protocol (draft)

Guidelines for the Use of Technology in Litigation in any Civil Matter

The latest consultation draft can be found at www.scl.org

There is at last a serious prospect of a court-led insistence on the use of technology for handling documents in court proceedings. A draft Practice Direction called Guidelines for the Use of Technology in Litigation in any Civil Matter is being discussed by interested parties, the most significant of whom is Lord Justice Brooke.

The initiative is to be welcomed. This article was written about the 4th Draft and looks at the draft Practice Direction and questions whether its authors are clear in their own minds whether the parties are to be required to use technology, or merely encouraged to do so.

What is being changed?

At present, it is quite possible to give Disclosure in compliance with Part 31 of the Civil Procedure Rules and its related Practice Directions and Guides without using a computer at all. The Guide to the Technology and Construction Court, the most technically advanced of the courts, merely suggests that parties “carefully consider how the burden of preparing documents can be reduced by co-operation in the use of information technology” adding that “the TeCSA IT Protocol may be useful in this regard”. The Chancery Guide describes in minute detail what a paper bundle should look like but does not refer to computerisation at all.

We have summarised elsewhere (see Is IT going to happen at last for Disclosure?) the context in which this development sits. Another article What does electronic disclosure mean to you? looks at the practicalities of giving Disclosure electronically and exchanging it with others. This article looks narrowly at the proposed Rules as they relate to Disclosure. It does not deal with the related subject of electronic court documents (such as Pleadings) which are also covered by the draft, nor at the presentation of electronic material at trial.

It is arguable that the new proposals will have no more force than TeCSA’s polite suggestion. What may be different, even on the present draft, is the encouragement given to the courts to make use of their (existing) powers to make orders on their own initiative concerning the use of technology. We think that the obligation to give Disclosure electronically should be expressed with more force and less ambiguity than appears in the present draft.

The revised drafts are being exchanged within days rather than the usual months, so our comments may well be overtaken before you read this – we are, indeed, participating in the discussions and have made these points already.

Compulsion or encouragement?

The Practice Direction aims to “facilitate and support the use of information technology in the conduct of civil litigation”. Paragraph 2 says that Parties to any civil proceedings will be “encouraged where appropriate” to:

• use electronic data to create lists of their disclosable documents

• give disclosure by exchanging electronic data

• arrange for inspection of by way of images if appropriate

• consider the use of electronic data at trial

The CPR and its associated documents contain only 20 uses of the word “encouraged”, most of them in the pre-action protocols. “Require” on the other hand clocks up 202 hits. The CPR in general tends more to command than to offer mere “encouragement”, but this draft practice direction falls short of making the use of technology a requirement – it is merely something to be “encouraged”.

It is one thing if this cautious tone is deliberate, and reflects a considered policy towards the new world of technology. We are not convinced, however, that the draft does have a considered policy as to the degrees of compulsion: if it were considered, it would also be consistent throughout the draft. Instead, the overall effect of the present draft is of confusion; the draftsman is willing to strike, but afraid to wound.

Paragraph 10 merely allows any party to initiate the use of technology if he thinks that the provisions of the Practice Direction should be used – he must apply no later than the Case Management Conference to the judge managing the proceedings or to a Master for directions as to how best this might be achieved.

Paragraph 17 adopts a more forceful tone: “Unless the Court otherwise orders, upon request by any party, electronic versions of disclosure data and electronic versions of disclosure items shall be provided”.

There is surely a confusion here? Parties are merely “encouraged” to adopt technology, but electronic versions “shall be provided” on Disclosure unless the court decides otherwise. If it is voluntary at the Case management Conference, how can it suddenly become compulsory by Disclosure?

Rule 17b exhibits further confusion of the same kind. Parties should “consider the exchange of disclosure data in an agreed electronic format using agreed fields … and should consider the use of electronic versions of documents which can be referenced with the data”. So far, so voluntary. By the end of the paragraph, however, the iron fist is back: “If parties are unable to agree on protocols the default electronic standards will apply”.  So is the use of technology voluntary or compulsory?

The draft Practice Direction expands on the court’s powers in this specific respect. Paragraph 18 has some mandatory elements but expressly only where parties “have agreed to exchange Disclosure data and electronic versions of disclosure items” – so if you volunteer you become subject to rules which do not apply at all if neither party raises the subject.

Paragraphs 19 and 20 gives the court power to make the parties try and agree about the use of technology and “to make all reasonable efforts to agree on a protocol if this becomes necessary”. Paragraph 21 sets out other things which the court “expects” parties to be able to do, but only where the use of technology has been raised.

Paragraph 22 rolls all these confusions together. It says this: “It should be noted that while advisory in nature the Court may mandate the use of these guidelines in the case of an electronic hearing being decided upon and further, may mandate the use of the default technology standards in cases where the parties fail to agree on exchange and presentation mechanisms within a reasonable timeframe”. 

Assuming that “mandate” means “require”, the force of this disappears with the proviso “in the case of an electronic hearing being decided upon”. We are not (yet) talking about electronic hearings in this part of the draft, only disclosure. The words “being decided upon” imply consensus rather than an order. If the use of the word “presentation” refers to presentation in court, then it is the first such reference in the draft – paragraph 25 says in terms that this is to be discussed at setting down, rather than at the first Case Management Conference, so what does “presentation” mean in this context?.

What might be changed?

The court does not require a specific power to order the use of technology: Rule 3.1(2)(m) gives power to “take any other step or make any other order for the purpose of managing the case and furthering the overriding objective” and Rule 3.3 gives the court power to exercise any power on its own initiative which is not excluded elsewhere.

It sees to us that insufficient faith is placed on the wise application of the concept of proportionality. It is made quite clear that CPR Rule 1 is to be observed at all times, although this is tempered by a distinction between Fast-Track (where the Practice Direction will “rarely” be applicable and Multi-Track cases (where it will “generally” apply).

This is surely the wrong message. One of the distinctions between Fast- and Multi-Track cases is indeed the quantity of documents to be disclosed. One of the perceived benefits of electronic Disclosure is that it is more efficient and speeds things up, both for the parties separately and as between the parties. Firms accustomed to giving Disclosure in this way should be able to do so quickly. It may well be that cases previously thought ineligible for the Fast-Track by reason of the volume of documents may become suitable for it where the parties are geared up to list and exchange quickly.

We favour a different emphasis: “parties will give Disclosure electronically unless the Judge or Master considers that it will be disproportionate for them to do so”.

On what grounds might proportionality rule out electronic Disclosure? The draft Protocol puts the “default electronic standards” within the reach of almost anyone. The combination of an easily achieved standard and an over-riding discretion in the hands of the court provides the safeguards which will ensure that small parties or little cases are not over-burdened with the imposition of technology which is beyond them, either technically or in costs terms.

Proportionality

The Protocol (which we consider in a separate article) makes it clear that a spreadsheet or a word-processed list may be enough for the lists of documents – the requirement is not as to the tool to be used but as to the way in which the information is laid out. Almost any firm (or litigant in person come to that) who can type out a conventional word-processed list could do so in a form which meets the “default electronic standards” referred to in the draft Practice Direction using existing office software.

As to the electronic versions of the documents, many documents provided by clients already exist electronically as a Word .doc or an e-mail message. If they do not, then scanning costs no more than photocopying (and often less), so cost alone is not a reason to plead that the new requirements are disproportionate.

The size of the case may be a factor, but equally may be a misleading measure of proportionality – one can envisage billion-dollar litigation fought over the interpretation of a single price of paper, whilst many low-value cases involve mounds of paper.

Conclusion

In its present form, the draft Practice Direction is a step forward which could have been taken eight years ago. An opportunity was lost then to make a dramatic change to the way parties prepared for proceedings, one which would have given hard practical effect to the CPR’s over-riding objective. Our suggestion, that parties generally be compelled to give Disclosure electronically, will simplify the new requirement and ensure that all the benefits and costs-saving as between parties really are achieved.

See our related article What does electronic disclosure mean to you?

Chris Dale

March 2004