This article was first published in the Legal Business Disputes Yearbook.
Simon Kerry asks whether front loading case management is effective in resolving cases and looks at the forthcoming Disclosure Pilot.
In recent years, reforms of the Civil Procedure Rules have focused on ‘front loading’ case management. In particular, for larger and more complex cases, planning phases have been established to set parameters within which the case will be conducted.
Six years ago, this approach gave us the costs-budgeting process; from 1 January of this year, it has also brought the new Disclosure Pilot for the Business and Property Courts. What (if anything) can we learn from the experience with costs budgeting and does front loading case management help or hinder in the resolution of cases?
A look back at costs budgeting – where are we now?
The costs-budgeting regime is now familiar to all practitioners. For the most part, the provisions work well and give rise to few technical issues. Initial concerns that costs budgeting would create significant cost and absorb time at the case management conference (CMC) appear not to have materialised – practitioners and judges, both in the county courts and the High Court, are experienced at dealing with the process and able to resolve areas of disagreement in short order.
Of more concern is the continuing inconsistency with which judges approach the costs-budgeting exercise. Some judges will apply a broad brush, looking only at the headline figures; others consider much more closely the detail of the supporting calculations, commenting on matters such as hourly rates and division between grades of fee-earner. Some will be very generous in the figures approved; others will exert strict control over the parties’ purse strings.
This unpredictability has a knock-on effect, by disincentivising parties from agreeing budgets in advance. It is not uncommon for both parties to attend the CMC, planning a root-and-branch attack on the other side’s budget, while defending their own (very similar) sums. This position is a hedge – agreeing your opponent’s budget as claimed leaves yours dangerously exposed to being slashed by a strict judge, while compromising with a lower sum leaves both parties worse off than they might have been in front of a generous court.
For barristers, it also makes the case and costs management conference (CCMC) more difficult and time consuming to prepare for. Lengthy exchanges with solicitors and/or costs draftsmen are necessary to prepare for all the questions the judge might ask and may be wasted effort if the judge on the day shows little interest in engaging with the detail.
Looking ahead – the new Disclosure Pilot
The new Disclosure Pilot applies to all cases in the Business and Property Courts where the first CCMC takes place on or after 1 January 2019. The provisions are process-heavy and break disclosure down into a number of discrete activities:
- ‘Initial Disclosure,’ under which the parties provide key documents with their pleadings (up to a maximum of 1,000 pages or 200 documents).
- Continuous and overriding duties to preserve all potentially relevant documents, and disclose known adverse documents.
- Drawing up and agreeing a ‘List of Issues for Disclosure’.
- Agreeing the appropriate disclosure model to apply for each issue, of which there are five (A-E).
- Where Model C (which calls for specific requests for discrete types or categories of documents to be made) is to be applied, agreeing the terms of those requests.
- Completing a ‘Disclosure Review Document’ setting out information and costs estimates relating to the documents held by each party.
All of the above activity should be completed in advance of the first CCMC, so that the judge at that hearing is in a position to give directions on any areas of dispute.
My experience so far is that judges are adopting a fairly practical approach to the provisions of the pilot and are reluctant to let disclosure cause excessive delays to the progress of cases towards trial. As parties find their way around the new provisions, pragmatism is prevailing over insisting on strict compliance.
However, the new provisions leave plenty of scope for dispute. Parties could disagree about what issues need to be included on the list of issues, what model of disclosure is appropriate for each issue and (under Model C) how each specific request for documents should be framed.
In that context, a plurality of judicial approaches is likely to emerge. Some judges will see the list of issues as a window through which the scope and cost of disclosure can be subject to strict control, in the interests of reducing costs. Others will be content to be guided by the parties and step in to adjudicate only where necessary.
Where does this leave litigation?
Front loading case management has some definite advantages. It gives each side a clear view of the work and costs involved of pursuing the matter to trial, and clients have more defined information against which sensible settlement offers can be evaluated.
However, predicting the future is always a tricky business, and any front-loaded regime has to compromise between being sufficiently rigid to realise the benefits of front loading, sufficiently flexible to deal with unexpected developments and allow sufficient discretion to deal effectively with all circumstances.
The balance struck by the costs-budgeting regime suffers from leaving too much room for discretion, with the result that outcomes are unpredictable. It seems likely that the Disclosure Pilot will encounter similar problems. More detailed guidance as to how disputes should be resolved, under both regimes, would be welcome.
A word must also be said about litigants in person, an ever-growing contingent of court users. Can they fairly be expected to participate in front-loaded case management, where (in most cases) they lack the skills and experience to predict how the litigation will unfold? The costs-budgeting rules acknowledge that this is too much to ask and do not apply to litigants in person. The same approach cannot work for disclosure, which is an integral part of gathering the evidence for trial.
More detailed thought needs to be given to the issues faced by litigants in person, particularly if the disclosure pilot is ultimately rolled out at county court level, where parties are all too often unrepresented.