All ;courts ;should implement the Commercial Court Long Trial Recommendations, according to Judge Simon Brown QC and former Taylor Wessing litigation partner Chris Dale.
Speaking at The Lawyer’s inaugural e-disclosure conference, the pair said 2005’s practice directions, which give the judiciary management power over cases, should be followed.
Dale, now an e-disclosure consultant, said: “As the recommendations don’t change the directions, which apply to all courts, it means that other courts can also follow them.
“This could be as simple as making sure both judges and practitioners have a basic knowledge of what types of electronic evidence is out there and the different types of technologies.”
Master of the Queen’s Bench Division Steven Whitaker has been taking note. He has asked for a standard technology form to be drafted, while Judge Brown of the Birmingham Mercantile Court is pulling together a new draft direction order in relation to e-disclosure.
Dale explained: “What will hopefully happen is that Master Whitaker’s form will be made compulsory in cases where e-disclosure is appropriate.
“The form will broadly cover simple questions such as whether there are tapes which are in a usable form or email correspondence that are relevant to the case.”
Bringing e-disclosure to the forefront of the legal profession’s mind has also led to the Law Society holding 10 roadshows across the UK. The next roadshow is in Bristol on 1 July.
Dale said these will provide basic education, which is particularly important for the judiciary.
“Judges cannot make proportionate orders without knowing something about the availability of resources, types of technology and how much it roughly would cost to get certain evidence, such as damaged tapes, up to scratch,” added Dale. “There has so far been no training for this, and there needs to be – although many judges, especially in the Commercial Court, are far from technophobes ;and ;are increasingly aware of what must be done.”
Alexandra Harrison, a legal consultant at Kroll Ontrack and former barrister suggests why using technology in the preparation and presentation of evidence is key to controlling the cost of litigation here.