The editor of Legal Week, Alex Novarese, in a recent post in the Editors’ blog speculated that there were a number of factors militating in favour of a review of the former destructive practice of law firms in this country to pension off partners as soon as possible after 50 and certainly by 55.  [Locking out older partners? The least-defended minority in the Square Mile, Legal Week, Jan 14th, 2011.]  He argued that the imminent abolition of the default retirement age of 65 with effect from April this year will force law firms to revise their employment policies as they concern “older talent.” He also argued that older partners may not in future “go quietly” as they have done in the past particularly after a number of internal restructurings and reduced loyalty as a result and if the forthcoming battle between by Leslie Seldon and his former firm over age discrimination ends in a victory for the claimant.

I found myself thinking of Alice in Wonderland (Lewis Carroll, published in 1865) and in particular of Old Father William. You will remember the poem!

“You are old, father William,” the young man said,
“And your hair has become very white;
And yet you incessantly stand on your head
Do you think, at your age, it is right?

“In my youth,” father William replied to his son,
“I feared it might injure the brain;
But, now that I’m perfectly sure I have none,
Why, I do it again and again.”

…

“In my youth,” said his father, “I took to the law,
And argued each case with my wife;
And the muscular strength, which it gave to my jaw,
Has lasted the rest of my life.”

You can read the full poem here

I love the idea of the muscular jaw caused by the legal arguments with his wife. Perhaps law firms should take note or suffer the same fate as the young upstart and be kicked down stairs!

On which note, I turn seamlessly to Naomi Campbell. On the 18th of January, the tediously named Fourth Section of the Court of Human Rights gave judgment in the case of MGN v United Kingdom (case number 39401/04). Mirror Group Newspapers had applied to the court in Strasbourg because it disagreed with the House of Lords’ decision in Campbell v MGN [2004] 2 AC 457 that publication of articles in 2001 breached Naomi’s privacy as they divulged details about her drug addiction therapy. In short, the court agreed with the House of Lords that the breach of the model’s confidence was not a breach of her Article 10 rights.

More interestingly for my purposes was the other finding that the success fee that MGN had been ordered to pay to Miss Campbell’s solicitors was disproportionate and a breach of Article 10.

So where are we?

Costs lawyer Jim Diamond says:

By far the best article on Naomi Campbell v Mirror Group case, comes from the RollonFriday the legal website in an article (originally) entitled “Carter Ruck F…..ked.”  A title I believe created by Private Eye in the early 90′s.

Sorry I hate to dampen the spirits of all the celebrating journalist in Fleet Street but, and this is a massive BUT ..

Naomi Campbell was successful in her action and was awarded £3,500 damages. Her lawyers, Schillings were looking at over approx £1million in costs including a success fee of £250,000.

So the next “Campbell” libel type action in the brave new world without success fees will costs you in round figures:

• OPPONENT LAWYERS’ COSTS £750,000
• MINIMUM OWN LAWYERS’ COSTS OF £500,00
• TOTAL LEGAL COSTS LIABILITY £1.25 MILLION

How does that Chardonnay taste now?

FREE SPEECH COMES AT A PRICE!”

It is fairly clear that

• lawyers will have to live with success fees of less than 100%;
• other fees must pass the proportionality test;
• this decision makes it more likely that the proposals contained in Lord Justice Jackson’s report that CFAs will be abolished in such cases, will be implemented.

Whether we go so far as contingency fees in this country is debatable but I will be watching developments here with interest as Millnet’s Smart-e-Discovery offering is geared towards reducing the barriers of entry to litigation.

Grist to Father William’s mill.

My recollection, on first hearing this speech, was that I thought immediately of the rather turgid 1970 film about the Japanese attack on Pearl Harbour in 1941, called “Tora. Tora, Tora”! Presumably this was because I did not take the content of the speech seriously enough and could only think of the film with a similarly three-worded title (which I believe means “Attack, Attack, Attack”)!

Now, 14 years after the speech and billions of pounds of investment later, some would argue that the priorities had not necessarily been achieved and might question whether the money had been put to good use.

It was therefore with a wry smile that I noticed that Lord Justice Jackson, in his final report, made education something of a favourite theme when it came to dealing with electronic disclosure. He expressed the hope that judges and lawyers dealing with electronic disclosure might have training and be educated in the noble art of handling e-discovery effectively and expressed the hope that this would happen sooner rather than later.

I could not agree more! I will, however, temper my enthusiasm for his cause by remembering the Blair exhortation and the actual outcome!

Despite this initial scepticism (and returning to my New Year theme of “strategy”) I want to encourage anyone who has to deal with early case assessment, review of documents, disclosure, witness statements, preparation for trial, or whose work involves sifting through piles of documents or hard drives containing millions ( or sometimes merely a few thousand) of emails, to learn what is out there in the market to help them complete that task effectively.

A number of providers have good websites or offer video representations of their wares or podcasts you can download, so there really is no reason for potential users of e-discovery services not to know what is there.

What is really encouraging, however, is that since the publication of the Jackson report, there appears to be an increase in the number of law firms making enquiries about training in this area. This has to be good news both from the wider perspective but also from the narrower position of a provider of such services in the marketplace.

I would like to encourage anyone with an interest to pick up the telephone and talk to one of the providers in the market. From my own company point of view, we welcome such contact and often do not charge for the training.

Perhaps there is something in the mantra, “Education, Education, Education” after all!

[Charles can be contacted on 020-7422-8800 and more details of Millnet's Smart e-Discovery services can be found at http://www.millnet.co.uk/smart_e-discovery.html]

I was surprised to find that the CPR is 50 not out. Since their introduction in April 1999, there have been a number of changes to the CPR and the 50th update is mostly due to come into force on 1st October 2009…

It may be a rather meaningless statistic but this means that there have been on average 5 updates each year since 1999 which equates to one update every 2.4 months!!

Lord Woolf’s aim to reduce the amount of litigation has been achieved admirably but at a cost. The front-loading of litigation costs is familiar to all litigation lawyers and their unfortunate clients who have had to pay the bill or forgo the litigation. It is to be hoped that the Jackson report, when published towards the end of this year, will come up with innovative solutions. If lawyers cannot come up with ways to litigate without the huge upfront costs now faced by the parties in the courts of this country, there is a real risk that London and the English Courts will lose their current reputation as a good and sensible place to resolve disputes from around the world.

Changing the obligations on disclosure (or discovery as I still fondly call it) may be part of the answer as will Third Party Litigation Funding but we should not forget the appropriate use of the technology which exists. A sensible and proportionate application of technology to the right case coupled with proposals to reduce the cost of disclosure (sic) from Rupert Jackson will help. In my view, however, instituting judicial training on the electronic options available so that judges can quiz the parties about the options they have chosen and make orders from a position of knowledge, coupled with judges enforcing the powers they already have, would provide a good start now.

There are more changes on the way. There will soon be a new Technology Questionnaire (and I will return to this at a later date), a new Practice Direction under Part 31 and, before the end of the year, we will see what Lord Justice Jackson has to say.

In the meantime, congratulations to the CPR in scoring a half century. If only they could bat for England!

Speakers included Professor Helen Genn, Anthony Hughes of FOIL, Amanda Stevens (Charles Russell and formerly of APIL), John Ussher of UNITE and Judge Stephen Oliver-Jones QC.

The message which came across loud and clear was that change is on its way and particularly in relation to areas of litigation practice such as disclosure. If lawyers cannot come up with a more efficient and cost effective way of dealing with disclosure, the rules relating to disclosure will have to be changed to make the process less onerous and therefore cheaper to comply with.

All this is of a piece with Mrs Justice Gloster’s view expressed at a recent Commercial Litigators’ Forum meeting that the days of courts filled with lever arch files are over.

I don’t think you see the process called Disclosure elsewhere in the world and indeed, I have recently had reason to look at the new Irish Supreme Court rules for 2009 and see that they resolutely refuse to follow Lord Woolf’s lead and firmly call the process Discovery. 

I am not sure what lies behind the change but the process described is still the most expensive and time consuming of all the litigation tasks.

Coupled with the reluctance to come to terms with new technologies and the increasing amount of documents for disclosure caused by emails, back up tapes etc., disclosure has become a nightmare for clients and lawyers alike.

I hope that some sensible recommendations for change will come out of the Jackson review on costs.   However, a start could be made now if..

..the courts used the powers at their disposal in the CPR to strike out statements of case for breach of the rules.

How often do litigators comply with the rule which provides for cooperation on technology at an early stage and in any case before the first CMC?

My guess is, not many. I am supported in this view by a KPMG survey (published in 2007) that revealed widespread dissatisfaction amongst lawyers with the Rules on ED in the CPR. The survey also revealed that:

Only 17% of lawyers believed that the CPR had had a positive impact on litigation.

• 43% believed they had not had a positive impact.
• 56% believed the Rules had led to increased costs of litigation.
• 48% believed that Judges and Masters were ill equipped to make effective E disclosure case management decisions. Amongst those litigators heavily involved in e-Disclosure matters, this figure rose to 71%.
• Despite encouragement in the CPR that both sides to a dispute should co operate on e-Disclosure, 39% admitted that they had never met their opponent to discuss it.
• Of those who had met, 29% did not meet until, at or after the CMC!