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Few solicitors understand e-disclosure, Jackson LJ complains

28 November 2011

“Relatively few solicitors and even fewer barristers” really understand e-disclosure, Lord Justice Jackson has said in the latest lecture on his costs reforms.

Jackson LJ said that even in medium-sized disputes, disclosure could be a major exercise and generate disproportionate costs.

“It can also result in a formidable bundle, most of which is never looked at during the trial. In larger actions where the relevant documents are electronic, the problem is multiplied many times over.”

Jackson LJ said there was no practice direction on e-disclosure until October 2010. He said that many consultants offered an e-discovery service, and they understood their software, but solicitors and counsel best understood the cases.

“Disclosure is not an activity which can be outsourced in its entirety to external consultants," he said. "No existing software programme is capable of achieving standard discovery.”

Lord Justice Jackson said effective training in e-disclosure for judges, counsel and solicitors was essential if the practice direction on e-discovery (PD31B) was going to operate effectively.

“Commercial Court judges have already undertaken e-disclosure training. The Judicial College will provide training in e-disclosure for civil judges next year.

“I hope that providers of CPD will provide similar training for all solicitors and counsel who have to deal with e-disclosure issues at case management conferences.

“If electronic disclosure is tackled in the wrong way or if inappropriate orders are made by the court, huge sums of costs will be thrown away.”

Jackson LJ said New Zealand was ahead of the UK, with rules, due to be introduced in January 2012, providing that in substantial cases, the court does not automatically order standard discovery but chooses between a range of options, including ‘tailored discovery’.

The lord justice added that a sub-committee chaired by Coulson J had drawn up a similar rule for England and Wales, which would be implemented, along with his other cost review reforms, in October next year at the earliest, at the same time as the legal aid bill.

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