Litigation Support and Electronic Disclosure

Draft Practice Direction for the use of IT in Civil Proceedings

LĩST- The Litigation Support Technology Group

www.listgroup.org

The draft Practice Direction for the use of IT in Civil Proceedings went through consultation in 2005 and was submitted to the Department for Constitutional Affairs in July of that year (it is a measure of LĩST's significance that the DCA is apparently taking their contribution seriously).

Its aim is to fill a gap which appeared when the recommendations in the Woolf Reports evolved into the CPR. Lord Woolf's backing for the use of IT - a major component in his Reports - quietly disappeared when the Rules came out.

The draft Practice Direction sets out its stall fairly uncompromisingly with these opening paragraphs.

1. This Practice Direction provides a framework for the parties to co-operate in making appropriate use of technology in civil litigation, thereby enabling the court to dispose of proceedings in accordance with the overriding objective referred to in CPR Rule 1.1.

2. The parties to civil proceedings are encouraged to use technology where appropriate, since in many cases it is likely substantially to save time and/or cost and to assist the court in dealing with the case expeditiously and fairly

I say "fairly uncompromisingly" because one of my rejected suggestions was to substitute the word "required" for "encouraged", leaving it to the court to decide (as it will anyway) what is appropriate to save time and costs.

A Practice Direction is, of course, a non-trivial document. Protocols (see links opposite) can evolve with time and experience and be modified on the fly by agreement between the parties. Practice Directions apply in principle to all cases subject to the proviso "where appropriate" which allows the parties to agree and/or the court to decide whether the use of technology is in fact likely to save cost or time.

The indications are that something like this draft will be added to the rules in due course. The main difficulty is likely to be a training point - if those running Case Management Conferences are to decide whether the use of technology is appropriate then they must have some informed understanding of what the implications are in the face of conflicting views from the parties at the CMC as to what is appropriate and what is proportionate.

The purpose of the very detailed Technology Questionnaire (see above) was to force parties to spell out the projected time and cost implications. My own observation on it was that the time and cost of preparing it properly was itself likely to be disproportionate in most cases and would generate opposition from practitioners in an area where willing co-operation was required. The shorter form attached as an appendix to the present draft Practice Direction is a sensible compromise.