Keeping up with the Joneses

Now seemingly dated, the phrase “keeping up with the Joneses” was slang for the phenomenon described by certain snooty commentators who noticed that the occupants of houses in suburban streets appeared to be copying one another in the acquisition of the latest material goods. I say it seems outdated because the phenomenon is now so widespread as to fail to evoke any comment or reaction when the latest piece of “electronica” is paraded in front of the neighbours.

The law is often said to lag behind reality, at least that is one of the politer epithets applied to our profession!

For once, it is satisfying to report briefly on three cases where the law appears to be forging ahead.

There is no need for me to do other than mention the three cases for my reader to understand what I mean and, therefore, I propose to do little more than that.

We start with the rolling southern charms of Hampshire, once the home of the late great Lord Denning. In a case which has hit the local headlines for all the right reasons, we discover that the Chief Constable of Hampshire is experimenting with paperless trials. It had to happen somewhere some day and I did not expect it to be Hampshire. Indeed ,my own home county of Norfolk reported a recent trial whereby police and social services were to be issued with tablets instead of notebooks!

It is reported in Portsmouth’s The News that Hampshire Police have become the first force in the country to pilot electronic paperless criminal trials. The pilot includes digital recording of evidence, the use of iPads in court and electronic witness statements:  Hampshire Police pilot ‘paperless’ criminal cases in Waterlooville, The News, 5th June, 2012

Turning then to more familiar ground for followers of this blog we cross the Atlantic to Pittsburgh where we find that a lawyer has persuaded Judge James Chamblin to order the use of predictive coding tools in a case in a circuit court in Loudoun County, Virginia.

Thomas Gricks 111, a partner in the Pittsburgh office of Schnader, Harrison, Segal and Lewis was granted an order on his motion to compel the plaintiffs represented by Jones Day to use predictive coding for discovery in a case involving more than 2 million documents. Mr Gricks was delighted with the result of his motion and the link to the Pittsburgh Post Gazette below contains a commentary and a picture of the successful lawyer! As Mr Gricks said, “So instead of reviewing 2 million, we could review 3,000 to 5,000 documents” and then come up with perhaps 200 that contain information critical to the case, Mr. Gricks said. “The key to this, from my perspective, is that it makes electronic discovery more affordable.”

Read more here: Pittsburgh lawyer wins landmark case involving use of predictive coding in discovery process, Pittsburg Post Gazette, 11th June, 2012.

Finally, home again, we have the case of  Sylvia Henry v News Group Newspapers Ltd [2012] EWHC 90218 (Costs) .

Here we are back again to the sad case of Baby P . If that case was not sad enough on its own it has spawned a certain amount of litigation (remember Sharon Shoesmith) which has previously been noted in this blog. [E.g.  It’s the strategy, stupid!, 5th January, 2010]

Now we have the case of a social worker who was allegedly defamed by articles in The Sun. Her case was settled before trial which entitled her to her claim for costs on the standard basis. The case was the first to be heard under the Defamation Proceedings Costs Management Scheme, set out at PD 51D. Now I do not normally report on such matters but it seems to me that this is all of a piece with the general movement in our civil proceedings towards costs management, budgeting and case management by judges on which I have reported in the past and will comment further as time moves on towards what lawyers are calling “Big Bang” in April 2013 when the relevant provisions of LASPO (if you have been reading my recent posts you will know what this is!) are expected to come into force.

You can read a short report about the case in a summary (see link below) provided by One Brick Court Chambers where you will find that, despite effectively winning her case and becoming entitled to costs, the claimant had exceeded by a substantial margin, the budget which had previously been approved by the court for her costs. As a result she had to persuade the court that there was a good reason why the paying party should be ordered to pay the increased costs but was unable to persuade Senior Costs Judge Hurst that she had established such a “good reason” enabling the court to depart from the budgeted amount.

We are going to hear much more about costs management and judges trained in active case management in the coming months leading up to April 2013 and the Henry case is merely a foretaste of what is to come if the parties exceed the budgets for costs approved by the court.

I can do no better than reproduce the comment by One Brick Court Chambers [Sylvia Henry v News Group Newspapers Ltd [2012] EWHC 90218 (Costs)] which should serve as an early warning of the future to all lawyers involved in civil proceedings:

“This is the first judgment giving detailed consideration to the application and consequences of the Defamation Proceedings Costs Management Scheme (although it also applies to malicious falsehood claims) and demonstrates the stark costs consequences which may result from a party failing to follow the requirements of the Practice Direction.

The ruling emphasizes the mandatory nature of the Practice Direction and the ongoing requirement to update the opposing party in the event that costs exceed their budget. In doing so, the parties must take a proactive approach to the budgeting and management of the costs of litigation. As libel claims can be unpredictable, proactive costs management can be particularly difficult. However, as this case demonstrates, the requirements of the Practice Direction means that the consequences of not paying adequate attention to costs management can be draconian. Raising any changes contemporaneously, and if necessary seeking a further costs management conference, will help to avoid any unexpected issues at the culmination of proceedings.”

In future, it is going to pay to keep your clients and the courts as well as your opponents up to date with any changes in your costs budget, or you may face draconian consequences. In other words it will pay “to keep up with the Joneses” after all.

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About Charles Holloway

Charles Holloway is a lawyer and accredited mediator. Formerly a senior litigation partner with Eversheds LLP and Head of Litigation in the East of England, Charles has been a director of Millnet Ltd since 2006. His interest in electronic document management arises from his wide experience of document intensive cases and his prominent involvement in investigations in the public and private sectors, notably both the Bloody Sunday and Harold Shipman inquiries. [View Charles Holloway's profile on LinkedIn.]