10/06/2014 05:26 BST | Updated 09/08/2014 06:59 BST

Jackson, Mitchell and the New eDisclosure Landscape


The 1st of April this year marked one year since the Jackson Reforms changed civil procedure in England and Wales. These reforms were designed with the very best of intentions: to impose more control on costs and make those costs more predictable from the outset of cases. In the year since the Reforms were introduced, we've seen landmark judgements that have tightened procedural practices even further, introducing a confrontational element that did not exist before.

The Jackson fallout

At the time we knew the regulations were important in procedural terms, but nobody predicted the fallout that would occur as a result, and subsequent rulings have begun to transform the formerly cooperative procedural practices in England and Wales, which are now more akin to a proto-US system of confrontational litigation - and that was not meant to happen with the Jackson Reforms.

The Jackson reforms were the culmination of various other reform efforts that had been underway for more than a decade. This includes the introduction of Practice Direction 31B in October 2010, which required parties to discuss the use of technology in connection with the disclosure of electronic documents before the first case management conference. The effect of all of these reforms, culminating with Jackson, was to enshrine in the CPRs the principle that parties in litigation had to predict how much eDiscovery/eDisclosure would be needed in a case.

Tightening the controls

But to the name Jackson we now need to add the name 'Mitchell', a case involving UK politician Andrew Mitchell and covers his dispute with News Group Newspaper over its 2012 publication of his alleged "foul mouthed rant" against police officers. Within this case the claimant's solicitors failed to file a budget in time -and led the master to rule that even if the claimant won his appeal, the only costs he would receive were his court fees. This ruling was affirmed by the High Court, which called for more rigid adherence to rules, practice directions and orders.

So you have the Jackson reforms coming in last April, tightening controls on costs and procedures, which was then followed up just seven months later by Mitchell. This reinforced the diktat and was taken by some judges as tightening those controls further still.

Reforms with teeth

An exemplary decision came to light in the case of Newland Shipping & Forwarding Ltd vs Toba Trading FZC in the High Court. Justice Hamblen - applying the Mitchell ruling - upheld an order of November 2013 against two defendants for failing to produce adequate disclosure and failing to file witness statements, resulting in judgment being entered against both for more than $7m. What is striking from the Newland Shipping case is the High Court's emphasis on procedural compliance as being the "paramount" lesson from the Jackson reforms and the Mitchell case:

"[T]he need to comply with rules, practice directions and court orders is essential if litigation is to be conducted in an efficient manner. If departures are tolerated, then the relaxed approach to civil litigation which the Jackson reforms were intended to change will continue". Under CPR 3.9 the "paramount" considerations are now "the need (i) for litigation to be conducted efficiently and at proportionate cost and (ii) to enforce compliance with rules, practice directions and court orders"

Lessons to learn

As the Newland Shipping case teaches, the clear lesson from the Jackson Reforms and Mitchell is that those seeking redress in English and Welsh courts must make sure they understand, and have taken steps to meet, the requirements expected under the Reforms. This not only entails picking when to fight or settle, for disclosure purposes, it means engaging the right lawyers, designing a workable process, and selecting technologies that will effectively enable compliance with the new procedural landscape.

With tighter controls those that do not take eDisclosure and other procedural obligations seriously, do so at their own peril.